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THE ESSENTIALS OF 
INTERNATIONAL PUBLIC LAW 



THE MACMILLAN COMPANY 

MXW VOKK • BOSTON • CHICAGO 
DALLAS • SAN PRANOSCO 

MACMILLAN ft CO., Limitsd 

LONDON • BOMBAY • CALCUTTA 



MACMILLAN CO. OF CANADA, Lm 



THE ESSENTIALS 



OF 



INTERNATIONAL PUBLIC LAW 



BY 

4 

AMOS S. gERSHEY, Ph.D. 

PROFESSOR OF POLITICAL SaENCE AND INTERNATIONAL LAW 

IN INDIANA UNIVERSITY 

AUTHOR OF ^THE INTERNATIONAL LAW AND DIPLOMACY 
OF THE RUSSO-JAPANESE WAR^ 



TStio Hotk 
THE MACMILLAN COMPANY 

1919 

AJi rifJUs rtS€rv€d 



I / 



Copyright, 1912, 

By the macmillan company. 



Set up and electrotyped. Publtshed October, xgta. 



J. 8. Onshin^ Oo. — Berwiok & Smith Co. 
Norwood, Mms., U.S.A. 



TO 
MY STUDENTS 

AT 

INDIANA UNIVERSITY 



PREFACE 

This work — the product of considerable experience in the 
study and teaching of International Law — aims to furnish the 
teacher and student with an up-to-date text adapted to the needs 
of the classroom, and also to present the specialist as. well as 
the general public with a scientific treatise on the subject. 

In the execution of this task, the author has tried to be as 
clear and concise as possible; and, in the body of the text, 
has carefully confined himself to what he regards as the " Essen- 
tials of International Public Law." Minor and controversial 
details have, for the most part, been relegated to the footnotes. 
These footnotes are intended to serve a double purpose: to 
furnish bibliographical and other data for a more extended study 
or investigation of particular topics; and to provide an addi- 
tional text for a longer course than is commonly given. It is 
hoped that the book may thus be readily adapted to a longer 
or shorter course at the discretion of the instructor. 

In the main, the work is based upon modem or contemporary, 
as distinguished from the older, sources and authorities. A 
special attempt has been made to review the more important of 
the many recent contributions to International Law contained 
in monographs and periodicals — Continental as well as Anglo- 
American. In the parts dealing with the Law of War and 
Neutrality, tht illustrations are drawn. largely from recent wars. 

It has been deemed best to incorporate into the body of the 
text (with notes by way of commentary) those parts of Inter- 
national Law which have been officially codified, viz. the 
Hague Conventions and the Declaration of the London Naval 
Conference of 1909. 

In the organization of the subject, the writer has adopted the 
newer and, as he believes, the more convenient as well as scien- 



VI PREFACE 

tiiic system of classification. The Law of Peace is thus mainly 
divided into " Subjects " and " Objects " of International Law ; 
the Law of War, into Land, Maritime, and Aerial Warfare. 
The Adjective Law of Nations is dealt with in Part IV under 
the heading " Settiement of International Disputes." 

It is due to the American Journal of International Law to state 
that the historical chapters, as also the chapters on " The Suc- 
cession of States " and " Aerial Space *' have been previously 
published in that excellent periodical. 

In conclusion, the author wishes to express his gratitude to 
his friend and colleague Professor Samuel Bannister Harding 
for valuable advice and assistance in the preparation of this 
volume. 

Bloomington, Indiana, 
September i, 191a. 



CONTENTS 

INTRODUCTION 

I. The Nature of International Law i 

II. The Basis or Sources op International Law . . • 17 

III. The History op International Relations during An- 

tiquity AND THE Middle Ages 26 

IV. History of International Law since the Peace of 

Westphalia 56 

PART I 

STATES— THE SUBJECTS OF INTERNATIONAL LAW* 

V. States as International Persons and Members of the 

International Community 92 

VI. Classification op States ..*.... 99 

VII. The Origin, Recognition, and Continuity op States . 115 

VIII. The Extinction and Succession of States . . .129 

IX. The Essential Rights and Duties of States . • -143 

X. Responsibility of States 161 



PART II 

THE OBJECTS OF INTERNATIONAL LAW 

XI. A State's Territory and its Boundaries. 

XII. Modes op the Acquisition and Loss of Territory 

XIII. Territorial Waters 

XIV. The Open Sea 

XV. The Law of the Aerial Space in Time of Peace 



XVI. Individuals as Objects op International Law 

■ • 
Vll 



172 

179 

195 
215 

232 

236 



• •• 

VIU 



XVII. 

XVIII. 

XIX. 
XX. 



CONTENTS 

PART III 

INTERCOURSE OF STATES 

Rights and Duties op Diplomatic Agents Ako Sov- 
ereigns 275 

Rights and Duties op Consuls and Consular Juris- 
diction IN the Orient 299 

International Congresses and Conperencbs . . 508 

International Treaties 311 



PART IV 
SETTLEMENT OF INTERNATIONAL DIFFERENCES 

XXI. Amicable Means op Settlement op International 

Dipperences 322 

XXII. Non-Amicable or FoRaBUt Modes op Settlement op 

International Disputes 343 



PART V 

THE LAW OF WAR 

XXII I. The Causes, Characteristics, and Fundamental Prin 
ciPLES OP War .... 



XXIV. Declaration op War and its Eppects 

XXV. The Laws of Land Warp are . 

XXVI. War on Land (continued) 

XXVII. The Laws op Maritime Warpare . 

XXVIII. Aerial Warpare .... 



349 
356 

372 
408 

419 
448 



PART VI 

THE LAW OF NEUTRALITY 

XXIX. The Nature, Historical Development, and the 
Characteristics or Fundamental Principles op 
Neutrality 452 



CONTENTS 






XXX. 

XXXI. 

XXXII. 

XXXIII. 

XXXIV. 

XXXV. 



Neutral Rights and Duties in Land Warfare . 

Neutral Rights and Duties in Maritiiie Warfare . 

The Law of Blockade 

Law of Contraband 

The Law of Unneutral Service or Hostile Aid 

Rights of Visit and Search, op Capture, and Con- 
demnation BY Prize Courts 



458 
465 

478 

489 
506 

5»3 



LIST OF ABBREVIATIONS 



A.I, — Instructioiis for the Government of the Annies of the United States in the 

ridd. 
A.J. — American Journal of International Law. 
Am. Law Rev. — American Law Review. 
Am. Pol. Set. Rev, — American Political Science Review. 
Annals. — Annab of the American Academy of Social and Political Sdenoe. 
Annuaire. — Annuaire de Tlnstitut de droit intemationaL 
Cantemp. Rev. — Contemporary Review. 
D. L. — Dedaration of London. 
Parin. Rev. — Fortnightly Review. 
G. C. — Geneva Convention. 
H. C. — Hague Convention. 
H. R. — Hague Regulations. 
Int. J. of Elkics. — International Journal of Ethics. 
/. C. L. — Journal of the Society of Comparative Legislation. 
/. 2>. /. — Journal de droit international privde (Clunet). 
L. Q. R. — Law Quarterly Review. 
N. R. G. — Nouveau recueil gdn^rale de traitds. 
Nal. Rev. — National Review. 
No. Am. Rev. — North American Review. 
Pkilos. Rev. — Philosophical Review. 

R. D. I. — Revue de ciroit international et de legislation compar6e. 
R. D. /. P. — Revue g^n^le de droit international public. 
Rep. I. L, A. — Report of the International Law Association. 
S. C. — Stockton's Naval War Code or Laws and Usages at Sea. 
Tableau. — Tableau g6n^le de Tlnstitut de droit international. 
Zeitsckrift. — Zeitschrift f Or Vdlkerrecht und Bundesstaatsrecht. 
* — To emphasize the interest or importance of a particular work or treatment of a 

particular subject. It is often used to emphasize availability rather than 

intrinsic importance. 



TABLE OF CASES 

(UnksB otherwise indicatedy the references are to pages.) 

Adula, the (1899), 176 U. S. 361 ; Scott, Cases, 826; and infra, 483 n. 

Alabama Contrcvarsy and Geneva Award, the, i Moore, Intemaiicnal ArbUraUomSp 

ch. 14; and 7 Ibid., Digest, § 1330; and infra, 21, 78, 467 n., 468 n. 
AUanton (1905), the, Hershey, Int. Law and Diplomacy of the Russo-Japanese War^ 

171 f; Lawrence, War and NeutralUy, etc. (2d ed.), 221 ff. ; and infra, 500 n. 
AUeganean, the (1885), Scott, 143; 4 & 5 Moore, Int. ArbiiraUons, 4333» 4^75; 

and infra, 200 n. 
Ambassador of Peter the Great (1708), Blackstone, Com., Bk. I, ch. 7, § 255; Snow» 

Cases, 89; and infra, 290 n. 
Amidie, the (1810), i Aeton, 240; and infra, 226 n. 

Anna, the (1805), 5 C. Rob. 373; Scott, 684; and infra, 172 n., 179 n., 465 n.' 
Antelope, the (1825), 10 Wheaton, 68; and infra, 156 n., 227 n. 
AppoUon, the (1824), 9 Wheaton, 362; and infra, 199 n., 205-206 n. 
ArgueUes, case of (1864), i Moore, Extradition, 33; 4 Moore, Digest, 249; and 

infra, 265-266 n. 
Atlantic Coast Fisheries (U. S. v. Great Britain, 1910), 4 A. J. 948, 983; 5 i4. /. x ; 

and infra, 201 n., 335 n. 

Bain, case of, 6 Moore, Digest, § 1027 ; and infra, 165 n. 

Baiz, in re (1890), 135 U. S. Rep. 403 ; Scott, 197; and infra, 293 nl 

Bait V. Malo (1899), 58 N. Y. Supp. 806; and 305 n. 

Barbuit*s Case (1737), Forrester's Cases Temp. 281 ; Stowell, Consular Cases, 52; 

and infra, 305 n. 
Barrundia Case, the (1890), 2 Moore, Digest, 871 ; and 270 n. 
Bartram v. Robertson, 122 U. S. 116; and infra, 317 n. 
Bekring Sea Controversy, the (1886-1893), i Moore, Digest, § 172; Snow, 522; and 

infra, 216-217 n. 
Belgenland, the (1884), U. S. Rep. 355 ; Scott, 338; and infra, 223 n. 
Bensen v. McMahon (1888), 127 U. S. Rep. 457 ; and infra, 267 n. 
Bermuda, the (1865), 3 Wallace, 514; and infra^ 486 n., 496 n. 
Betsey, the (1798), i C. Rob. 93; Scott, 798; and infra, 479 n. 
Bluefields Case, the, 4 Moore, Digest, 99 ; and infra, 261 n. 
Boedus Lust, the (1803), 5 C. Rob. 245 ; Scott, 460; and infra, 345 n. 
Boussmaker, ex parte (1806), 13 Vessay Jun. 17 ; Scott, 504; and infra, 369 n. 
Boyd V. Nebraska, 143 U. S. Rep. 178; and infra, 252 n. 
Brig Sea Nymph, the (1901), 36 Ct. CI. 369 ; Scott, 869 ; and infra, 519 n. 
Brown v. U. S. (1814), 8 Cranch, no; Scott, 486; and infra, 363 n. 
Buena Ventura, the (1899), 175 U. S. 388; and injfra, 364 n. 
Bulioer, dismissal of (1848), 4 Moore, Digest, 538; and infra, 285 n. 
Bundesrath, case of the (1900), 7 Moore, Digest, § 1262 ; and infra, 496 n., 500 n. 
Buttemuth v. St. Louis Bridge Co. (1888), 123 Illinois, 535; Soott, 121; and infra, 

173 n., 174 n. 

• • 

Zll 



TABLE OF CASES xiii 

CaHfofma Pious Fumi Case, the, 2 A. J. (1908), 893 ; and mfra, 334 n. 

Cardmey the (1837-1838), 2 and 7 Moore, Dig^, H 2x7 and 1300; 3 Moore, ImL 

AfbUraHons, 24x9; aund wfra, 145 and n., 458 n. 
Cardhte, the (1808), 6 Rob. 464; and infra, 509 n. 
Carriug^ v. Ins, Co. (1834), 8 Peten, 495 ; Soott, 769; and infra, 501 n. 
Casablanca Incident, the (1909), $ A. J. (1909), 176, 698, 755, 946; and iR^/hi, 

335 n. 
Castione, in re (1890), 12 Q. B. Div. 149; Soott, 285; and infra, 270 n. 

Caso Case, the, i Moore, Exiradition; Snow, 161 ; and infra, 270 n. 

Cellamare, Prince of (1718), i Ch. de Martens, Causes ciUbres, X39-X73; Snow, 

88 ; and infra, 287 n. 
Ckae Chan Ping v. U. S., 130 U. S. 581 ; and infra, 258 n. 
Charming Betsey, the, 2 Cranch, 64, 118; and infra, 10. 
Ckeltenkam, the (1905), Hershey, Int. Law and Diplomacy of the Russo%Iapa$tese 

War, 173 n. ; and infra, 51 x n. 
Cherokee Nation v. Georgia (1821), 5 Peters, i ; and infra, 109 n. 
Chinese Cases (1892), 149 U. S. 698 ; Scott, 382 ; and infra, 258 n. 
Chin King, ex parte (1888), 37 Fed. Rep. 354; Scott, 379; and infra, 241 n. 
Christian Ernest, case of (1859), 3 Moore, Digest, 574; and infra, 244 n. 
Christina^ Queen of Sweden (1657), 3 Calvo, § 1477; &nd infra, 296 n. 
Church V. Huhbart (1804), 2 Cranch, 187; Scott, 343; and infra, 199 n. 
Circassian, the (1864), 2 Wallace, 135; and 4 Moore, Int. Arbitrations, 39x1. 
Commercen, the (1616), i Wheaton, 382 ; Scott, 765 ; and infra, 460 n., 492 n. 
Com. V. Kosloff (1816), 5 S. & R. 545 ; Stowell, Consular Cases, 112 ; 5 Moore, Digest, 

§ 712; and infra, 305 n. 
Constitution, the (1879), 48 Law Journal, P. D. & A. 13; Scott, 218; and infra, 

220 n. 
Cook V. Spring (1899), A. C. 572 ; and infra, 140 n. 

Cooley V. Golden (1893), 52 Missouri Appeals, 52 ; Scott, 129 ; and infra, X74 n. 
Costa Rica Case, the, 2 Moore, Digest, p. 879 ; and infra, 270 n. 
Countess of Buena Vista v. U. S. (1908), 2 A. J. (1908), 684; and infra, 138 n., 

263 n. 
Crampton, dismissal of (1856), 4 Moore, Digest, pp. 533-535 ; and infra, 284 n. 
Cutting Case, the (1866), 2 Moore, Digest, §§ 200-202; and infra, 159-160 n. 

Deerhound, case of the, during Civil War, Bernard, Neutrality, etc., 429-430; 

J Claims against Great Britain, 261-308 (ist sess., 41st Cong., 1869) ; and infra, 

430 n. 
De Geer v. Stone, 22 Ch. D. 243 ; and infra, 240 n. 

De Haber v. Queen of Portugal (1851), 17 Q. B. 196; Scott, 180; and infra, 295 n. 
De Lima v. Bidwdl (1901), 182 U. S. i ; and infra, 137 n. 
De Ldme Incident, the (1898), 4 Moore, Digest, § 639 ; and infra, 282 n. 
Dillon, in re (1854), 7 Sawy, 5 ; and Stowell, Consular Cases, 139. 
Dodwijh, the (1896), Elliott, in i i4. /. (1907), 97-99 and note on p. 99 for references; 

and infra, 496 n. 
Dooley v. U. S. (1901), 182 U. S. 222 ; and infra, 137 n. 
Downes v. Bidwell (1901), 182 U. S. 244; and infra, 137 n. 
Dutch Minister, the (1856), 4 Moore, Digest, § 662 ; and infra, 289 n. 

Ekaterinosla9, the (1904), infra, 357 n. 

Elector Hesse Cassel, the case of the, Snow, 381 ; and infra, 181 n. 

Elk V. Wilhins (1884), 112 U. S. Rep. 94; Scott, 398; and infra, X09 n. 



xiv TABLE OF CASES 

EUis V. MUchdl (1874), U. S. For. Rel. for 1875, 600; Soott, 234; and infra, 222 lu 
Emperor of Austria v. Day ami Kossuth (1861), 2 Giffocd, 623, 678 ; and imfra, 9 vu 
Esposito V. Bowden, 24 L. J. Q. B. 210 ; and ff»/ra, 369 n. 
Exchange v. McPadden (181 2), 7 Crandi, 116; Soott, 208, 216; and «i/ra, 220 n. 

Fanny, the (181 5), i Dodson, 443; and ifrfra, 5x7 n. 

Pares, in re, 7 Blatch. 345 ; and infra, 267 n. 

Flelcher v. Pech, 6 Cranch, 136. 

Portuna, the (1811), i Dodson, 81 ; and infra, 226 n. 

Poster £r Elam v. Neilson (1829), 2 Peters, 253 ; Scott, 75 ; and infra, 174 n. 

Fourteen Diamond Rings v. U. S. (1901), 183 U. S. 176 ; Soott, 667 ; and i$^ra, 137 n. 

Pranciska, the (1854), Spinks, 287. 

Prandsha, the (1885), 10 Moore, P. C. ; Scott, 804 ; and infra, 479 n. 

Collatings Coachman (1827), 4 Moore, Digest, 656; and infra, 292 n. 

Gdmez, case of, 2 Moore, Digest, 867 ; and 270 n. 

Ceneral, the (1900), 7 Moore, Digest, § 1262; and infra, 496 n. 

General Armstrong, the (1852), 2 Moore, Digest, § 210; 2 Ibid,, Int. Arbitr. 1071; 

and infra, 460 n. 
Ceneral Hamilton, the, 6 Rob. 610; and infra, 487 n. 
(;^ff€<, recall of (1792), 4 Moore, Digest, § 639; and tfi/ra, 282 n. 
Gouveneur Morris, case of (1792), 4 Moore, Digest, § 639; and in/ra, 282 n. 
Grange, the, i Moore, Digest, 735-739 ; and «fi/ra, 200 n. 
Gray v. £/. 5. (1886), 21 Ct. of Claims, 340; and Scott, 452. 
Griswold V. Waddington (1819), 16 Johnson's Rep. 438; Scott, 504; and »»/ra, 

369 n. 
GyUenhorg, Count, case of (171 7), i Ch. de Martens, Causes calibres, 75-138; 

Snow, 87 ; and infra, 287 n. 

Haabet, the, 2 C. Rob. 174; and infra, 504 n. 

Haimun, case of the (1904), Hershey, Int, Law and Diplomacy of the Russo-Japanese 

War, 115; Lawrence, War and Neutrality in the Par East (2d ed.), 33; and 

infra, 398 n., 451 n. 
Handly*s Lessee v. Anthony (1820), 5 Wheaton, 374; Scott, 116; and infra, 173 n 
Hanger v. Abbott (1867), 6 Wallace, 532 ; Scott, 500; and infra, 369 n. 
Harcourt v. GaUiard (1827), 12 Wheat. 523, 527 ; Scott, 70; and infra, 115 n. 
Hardy, Lew, La Voltigeante, Snow, 337 ; Pistoye et Duverdy, 321 ; and infra, 443 n. 
Harmony, the (1800), 2 C. Rob. 322 ; Scott, 585 ; and infra, 256 n. 
Hausding*s Case (1855), 3 Moore, Digest, 278; Snow, 222; and infra, 241 n. 
Haver v. Yaker (1869), 9 Wallace, 32 ; Scott, 42b; and infra, 314 n. 
Heathfield v. Chilton (1767), 4 Burr. 2015; Scott, 189; and infra, 9, 293 n. 
Heisinger, case of Mrs., 3 Moore, Digest, 467 ; and infra, 250 n. 
Helena, the (1801), 4 C. Rob. 169; Scott, 45 ; and infra, 97 n. 
Henfield, Gideon (1794), Wharton's State Trials, 49. 
Herzog, the (1900), 7 Moore, Digest, § 1262 ; and infra, 496 n. 
Hiawatha, the, Blatchford's Prize Cases, 15 ; and infra, 480 n. 
Hilton V. Guyot (1894), 159 U. S. Rep. 113, 163-164, 214-215 ; and infra, 3 n., 4 n., 24. 
Hoare v. AUen (1789), 2 Dallas, 102 ; Scott, 498; and infra, 369 n. 
Hollander Case, the, 4 Moore, Digest, 102 ; and infra, 261. 
Hoop, the (1799), I Rob. 196; Scott, 521 ; and infra, 363 n. 
Horsa, case of the, 7 Moore, Digest, 911 ; and infra, 469 n. 
Huascar, the (1877), 2 Moore, Digest, 1086; and infra, 225 n. 



TABLE OF CASES XV 

Hudson V. Guestier (1810), 6 Cranch, 281 ; and infraf 199 n. 
Hurtige Honey the (iSoi), 3 C. Rob. 324; and infro, 97 n. 

IminOf the (1800), 3 Rob. 138; Scott, 776; and infrOf 500 n. 

Immonuelf the (1799), 2 C. Rob. 186 ; Scott, 845 ; and infrOf 495 n. 

Indian Chief , the (1801), 3 C. Rob. 12; Scott, 588; and infra^ 256 n. 

Indiana v. Kentucky (1889), 136 U. S. 479; and infra, 173 n. 

Industrie, the (1905), Takahashi, Ini. Law as Applied during the Russo-Japanese 

War, 732 ; and infra, 51 x n. 
Ionian Skips, the, 2 Spinks, 218 ; and infra, 105 n. 

Iowa V. Illinois (1893), 149 U. S. i ; i Moore, Digest, 6x8-6x9; and infra, 173 n. 
Itata, the (189X), 3 Moore, Inl. Arbitration, 3070; and infra, 200 n. 

Jackson, dismisaal of (1809-181X), 4 Moore, Digest, 511-525 ; and infra, 283-284 n. 
Japan, Perpetual Leases in (X905), 2 A. J. (1908), 9x1 ; and infra, 334-335 n. 
Jean de Puca Strait Question, the, i Moore, Digest, 133 ; and x Moore, Int. Arhiiro' 

tions, ch. 7 ; and infra, 201 n. 
John Anderson (1879), x Moore, Digest, 932-935; 3 Wharton, Digest, 123-125; 

and infra, 222 n. 
Johnson v. Mcintosh (X823), 8 Wheaton, 543 ; Scott, 71 ; and infra, no n., 181 n., 

185 n. 
Jones V. U S., X37 U. S. 202 ; Scott, 38 ; and infra, 125 n., 193 n. 
Jonge Tobias (1799), i C. Rob. 329; and infra, 501 n. 
Jonje Margaretha, the (X799), x C. Rob. 189; Soott, 762; and infra, 492 n. 

Keily Case, the (X885), 4 Moore, Digest, 480; and infra, 277 n. 

Keith V. Clark (X878), 27 U. S. 454; Scott, 28; and infra, X25 n. 

Kershaw v. Kdsey (1868), 100 Mass. 56X ; Scott, 537 ; and infra, 369 n. 

King of the Two Sicilies v. Wilcox (1851), i Sim. N. S. 301, 327-336; and ffi/ra, 

131 n. 
Knight Commander, the case of the (X905), Hershey, Int, Law and Diplomacy of the 

Russo-Japanese War, X56-159; and infra, 522 n. 
Knoche Case, the (1845-X848), 3 Moore, Digest, 564; and infra, 243-244 n. 
Koszia Case, the (1853), 3 Moore, Digest, §§ 490-49X ; 2 Wharton, Digest, §§ 175, 

198; and infra, 252 n., 254-255 n. 
Kowshing, case of the (1895), Takahashi, Cases during the China-Japanese War, 

26-3X, 46-47; and infra, 357 n., 5XX n. 

Vanemone (1875), JJ D. I. (Clunet) for 1876, 413; Snow, 124, and infra, 222 n. 

Look Ti^ Sing, m re (1884), 21 Fed. Rep. 905 ; and infra, 241 n. 

Louis, the (181 7), 2 Dodson, 2x0, 243; Soott, 352; and infra, X99 n., 227 n. 

Macartney v. GarbuU, L. R. 2 Q. B. Div. 368; and infra, 295 n. 

Macdonald, case of (1747), Foster's Crown Law, 59; Scott, 370; and infra, 243 n. 

Madonna del Burso (1802), 4 C. Rob. 4; and 97 n. 

Magdelena Steam Nov. Co. v. Martin (1859), ^ Ellis & Ellis, 94; and infra, 289 n. 

Magellan Pirates, the (X853), i Spinks Ecd. and Adm. Rep. St. 8x; Soott, 351; 

3 Phillimore, § 360; and infra, 224-225 n. 
Malacca, seizure of the (X904), Hershey, Int. Law and Diplomacy of the Russo* 

Japanese War, 138-142, 148-152; and infra, 421-422 n. 
Mandjur, case of the (1904), Hershey, 188; Takahashi, 418; and infra, 471 n. 
Maria, the (1799), i Rob. 350; Scott, 858; and infra, 9, 5x3, 519 n. 



xvi TABLE OF CASES 

Mariana Flora, the (1826), 11 Wheaton, i ; Scott, 873 ; and ffi/ra, 221 n., 226 n. 

Malkews v. McSUa (1875), 9' U. S. 7; Scott, 508; and ififra, 367 n. 

McCabe, ez parte, 48 Fed. Rep. 363 ; and infraf 265 n. 

Mcllvane v. Coxe*s Lessee, 4 Crancfa, 209; and infra, 115 n. 

MigjkiU V. Sultan of Johore (1894), L. R. i Q. B. 149; and infra, 295 n., 296 n. 

Minneapolis v. Reum (1893), 56 Fed. Rep. 576; Scott, 390; and if^ra, 252 n. 

Mississippi and St. Lawrence Controversies, the, i Moore, Digest, |{ 130-131 ; Snow, 

Cases, 33-40; and infra, 208-209 n. 
Mokr and Baas v. Haizfdd, Dalloz, 1872, 11, 229; Snow, 377; and «fi/ra, 416 n. 
Montezuma, the (1677), i Calvo, § 502; Snow, 206; and infra, 225 n. 
Mortensen v. Peters, 14 Scots Law Times Rep., Pts. 13 & 14; i A. J, (1907), 526; 

and infra, 200 n. 
Muscat Dhows Case (1905), 2 A. J. (1908), 923; and infra, 335 n. 
Musurus Bey v. Godkam, L. R. (1894), i Q. B. 533; and infra, 289 n. 

Nancy, the (1809), i Acton, 57; Scott, 817; and infra, 479 n. 

Ndfraska v. Iowa (1892), 143 U. S. 359, 368 ; i Moore, Digest, 271-273 ; and infray. 

174 n. 
Neptunus, the (1799)1 ^ Boh* no; Scott, 796; and infra, 483 n. 
Nereide, the (1815), 9 Cranch, 383; and infra, lo-ii, 513 n., 517 n., 519 n. 
New Orleans AJfair, the (Mob Attack on Spaniards in 185 1), 6 Moore, Digest, p. 811 ; 

and infra, 164 and n., 303 n. 
New Orleans AJfair, the (Lynching of Italians in 1891), 5 Moore, 837 ; and infta^ 

164 n. 
Neutralitaet, the (i 801), 3 C. Rob. 295; Scott, 767; and infra, 501 n. 
Neuflon and Sally, the (1806 — for "French RuJe"), i Ortolan, 293, 450; Snow^ 

1 21 ; infra, 222 n. 
N. Y. Life Ins. Co. v. Stathem (1876), 93 U. S. 24; Scott, 512 ; and infra, 369 n. 
Ninfa, the (1896), 75 Fed. Rep. 513 ; Scott, 443 ; and infra, 338 n. 
Niskimura Ekiu v. U. S. (1892), 142 U. S. Rep. 659; and infra, 258 n. 
North Sea Incident, the (1905), Hershey, Int. Law and Diplomacy of the Russo^ 

Japanese War, ch. 8; and infra, 326-327 n. 
NoveUo V. Toogood, i B. & C. 554; and infra, 293 n. 

Olinde Rodrigues, the (1898), 174 U. S. 510; Scott, 835; and infra, 479 n. 

Oregon Controversy, the (1846), i & 5 Moore, Digest, §§ 80-81, 104, 835; i Moore» 

Int. ArbitraUons, chs. 7 & 8; and infra, 189-190 n. 
Orinoco Steamship Co., the (1910), $ A. J. (1190), 35, 230; and infra, 335 n. 
Orozambo, the, 6 C. Rob. ; Scott, 785 ; and infra, 509 n. 

Pacifico, Don (1850), 7 Moore, Digest, § 1096. 

Packet be Bilboa (1799), 2 C. Rob. 133 ; Scott, 609 ; and infra, 446 n. 

Panaghia Rhomba, the (1858), 12 Moore's P. C. 168; Scott, 800; and infra, 487 n. 

Panama, the (1899), 175 U. S. 535 ; Scott, 788; and infra, 364 n., 424 n. 

Pantaleon Sa, Don (1653), Snow, 86 ; 2 Ward, History of the Law of Nations, 535- 

546 ; and infra, 294 n. 
Paguete Habana v. U. S. (1899), 177 U. S. Rep. 677, 700; Scott, 19; and infra, 11 

and n., 12, 24 n., 425 n. 
Parkinson v. Potter (1885), L. R., 16 Q. B. Div. 152; and Scott, 192; and infra, 

293 n. 
Parletnent Beige, the (1878), Law Rep., Probate Div., 197; Scott, 220; and infra, 

220 n. 



TABLE OF CASES xvii 

Pedro, the (i8<)9), 175 U. S. 354; and infra, 364 n. 

Pderkojf, the (1866), 5 WaUace, 28; Soott, 760; and infra, 460 n., 486 n., 492 n., 

496 n. 
PtMs V. Bell (1800), K. B., 8 Term Reports, 548 ; Scott, 525 ; and infra^ 366 n. 
Poussin, dismissal of (1849), 4 Moore, Digest, 531-533; and infra, 284 n. 
President, the, 5 Rob. 279; and infra, 255 n. 
Prins Heinrick, the, Hershey, Int. Law and Diplomacy of the Russo-Japanese War^ 

139-140, 155-156; *"<* infra, 424 n. 
Prikhard AJfair, the, i Calvo, § 1392 ; 2 Phillimore, 247 ; and infra, 303 n. 
Prise Cases, the (1862), 2 Black. 665; and Scott, 601. 

Quamgnam, the (1905), Takahashi, Int. Law as Applied during the Russo-Japanese 

War, 732; and infra, 511 n. 
Queen v. Keyn (1876), L. R., 2 Exchg. Div. 63; Scott, 154; and infra, 9 and n., 

24 n., 213. 

Rapid, the (1814), 8 Cranch, 156; Scott, 557; and infra, 366 n. * 

Recovery, the (1807), 6 Rob. 348; and infra, 9. 

Regina v. Anderson (1868), 11 Cox, C. C, 198; Scott, 331 ; and infra, 222 n. 

Regina v. Lesley (i860). Bells Crown Cases, 220; Scott, 337; and infra, 222 n. 

Reliance, the (1848), i Abbott's Adm. Rep. 317; Scott, 230; and infra, 223 n. 

Republic of Bolivia, the, etc. (1908-1909), 3 Zeitschrift fiir Bundes- und ViUherrecht, . 
165, 341 ; and 225 n. 

Ripperda, Duhe of (1726), Ch. de Martens, Causes cilibres, 174; Snow, 139; and 
infra, 271 n. 

RoUa, the, 6 Rob. 364 ; and infra, 479 n. 

Rose V. Himdy (1808), 4 Cranch, 241 ; and 199 n. 

Rudowits, case of, the Green Bag for April, 1909; and infra, 370 n. 

Ryeshiteilni Incident, the (1905), Hershey, Int. Law and Diplomacy of the Russo- 
Japanese War, 260; Takahashi, 437; and infra, 465 n. 

Sachville-West, Lord, dismissal of (1888), 4 Moore, Digest, 536-548; and infra, 284- 

285 n. 
Salvador, the (1870), 30 Privy Council Rep. 216; Scott, 743; and infra, 118 n. 
Salvadorean Refugees, the, and the San Ignacio Raid, 4 Moore, Digest, 334; and 

infra, 270 n. 
Sanches v. U. S. (1907), 42 U. S. Court of Claims, 458; 2 A. J. (1908), 678; and 

infra, 138 n. 
Santissima Trinidad, the (1827), 7 Wheaton, 283; Scott, 701; and infra, 460 n., 

468, 524 n. 
Sarmientos Case, 4 Moore, Digest, 654 ; and infra, 293 n. 
Savarhar Case, the (191 1), s A. J. (191 1), 208; and infra, 335 n. 
Schooner Nancy, the (1892), 27 Ct. CI. 99; Scott, 861 ; and infra, 519 n. 
Scotia, the (1871), 14 Wallace, 170, 187-188; Scott, 17; and infra, 11, 12. 
Silesian Loan, the (1752), i Cobbett, 334; 2 Ch. de Martens, Causes c^^es, 

1-89 ; Snow, 243 ; and infra, 363 n. 
Society for the Propagation of the Gospel v. New Haven (1823), 8 Wheaton, 464, 494; 

Scott, 428 ; and infra, 361 n. 
Sotelo, case of, 2 Moore, Digest, 856; Snow, 147 ; and infra, 270 n. 
SouU, case of (1854), 4 Moore, Digest, § 643 ; and infra, 280 n. 
Springbok, the (1866), Blatchford's Prize Cases, 349; 5 Wallace, i; mod infra, 

486 n., 496 n. 



xviii TABLE OF CASES 

St. Albans Raid, i Moore, ExtradUum, 322 ; Snow, 162 ; and infra, 270 n. 

St, Louis V. Ruts (1891), 138 U. S. 226; and infra, 174 n. 

State V. Patterson (1893), 116 Missouri, 505; Soott, 283; and infra, 267 n. 

Stephen Hart, the (1863), Blatcfafocd's Prin Cases, 387 ; 3 Wallace, 559 ; Scott, 85a; 

and infra, 486 n., 496 n. 
Sutton V. Sutton (1830), i R. & M. 427 ; and infra, 361 n. 

Taylor v. Best (1854), 14 Common Bench, 487 ; Snow, 90; and infra, 289 n. 

Tempest, the (1859), x Ortolan, 293, 455; Snow, 122; and infra, 222 n. 

Terceira Expedition, the (1829), Hall (6th ed.), 603; 2 Westlake, 194; and itrfra, 

469 n. 
Texas v. White (1868), 7 Wall. 700; Scott, 25; and infra, 125. 
The Three Friends (1896), 166 U. S. i ; Scott, 748, 758 ; and infra, 1 18 n., 352 n. 
Thirty Hogsheads of Sugar v. Boyle (1815), 9 Cranch, 191, 198; and infra, 22 n. 
Tousig Case, the (1854), 3 Moore, Digest, p. 838; and infra, 255 n. 
Trent AJair, the (1861), 7 Moore, Digest, § 1265 ; and infra, 280 n., 51X n. 
TrimhWs Case (1884), i Moore, Extradition, 166; and infra, 265 n. 
Triquet v. Bath (1764), 3 Burr. 1478; Scott, 6; and infra, 9, 12, 293 n. 
Trois Frires, Les, Pistoye et Duvndy, 357 ; and Snow, 348. 
Turner v. Williams (1904), 194 U. S. 379; and infra, 261 n. 

U. 5. V. Ambrose Light (1885), 25 Fed. Rep. 408 ; Scott, 346 ; and infra, 224 n. 
U. S. CaUe Co. v. Anglo-Am, Tel, Co, (1877), L. R. P. C, 2 App. Cases; Snow, 45; 

I Moore, 740; and infra, 200 n. 
U. S. V. Kaganna (1886), 118 U. S. Rep. 376; Scott, 404; and infra, 109 n. 
U. S. V, Kazinshi, 2 Sprague, 7. 

U. S. V. Klintoch (1820), 5 Wheaton, 144; and infra, 223 n. 
U. S, V. Liddle (1808), 2 Wash. Circ. Ct. 205; and infra, 287 n., 293 n. 
U, S. V. McRae (1869), L. R., 8 Excheq., 69; and infra, 131 n. 
U, 5. V. Meteor (1866), Scott, 706 ; and infra, 468 n. 
U, S. V, Ortega (1825), 4 Wash. Circ. Ct. 531 ; and infra, 287 n. 
U. 5. V. Palmer (x8i8), 3 Wheaton, 610; and infra, 223 n. 
U, S, V. Percheman (1833), 7 Peters, 51, 86; Scott, 95 ; and infra, 138 and n. 
U, S, V. Pirates (1820), 5 Wheaton, 184; and infra, 223 n. 
U. S. V. Prioleau (1866), 2 H. & M. 563 ; Scott, 85 ; and infra, 131 n., 138 n. 
U. S. V. Quincy (1832), 6 Peters, 445 ; Scott, 706; and infra, 468 n. 
U. S. V. Rauscher (1886), 199 U. S. 407; Scott, 274; and infra, 267 n. 
U. S. V. Rodgers (1893), 150 U. S. 249; Scott, 132 ; and infra, 204 n. 
U. S, V. Smith (1820), 5 Wheat. 153 ; Scott, 13 ; and infra, 12, 223 n. 
U. S. V. Soulard (1830), 4 Peters, 511 ; and infra, 138 n. 
U. S. V. Texas (1891), 143 U. S. 621 ; and Scott, 76. 
U. S. V, Trumbull (i 891), 48 Fed. Rep. 99; Scott, 731 ; and infra, 200 n. 
U. 5. V. Wong Kim Ark (1898), 169 U. S. 649; and infra, 241 n. 

Venesuda Boundary Dispute, the (1899), i & 5 Moore, Digest, §§ 88, 966 ; and infra, 

190 n. 
Venezuela Claims, the (1904), 2 A. J. (1908), 902 ; and infra, 334 n. 
Venus, the (1814), 8 Cranch ; Scott, 591 ; and infra, 256 n. 
Virginius, the (1873), ^ Moore, Digest, 895 fif., 967 ff., and 980 ff. ; and infra, 145 

and n., 221. 



TABLE OF CASES xk 

Wofd V. Race Horse, 163 U. S. Rep. 511 ; and tii/ra, 318 n. 

West Rand Central GM Mining Co, v. The King (1905), L. R., a K. B. 391, 40Z-402, 

407 ; and infra, 10 and n., 12, 24 n., 140 n. 
Wkeaion's Case, 4 Moore, Digest, | 663; Snow, 94; Wheaton, §| 228-241; and 

infra, 290 n. 
Whitney v. Robertson (1887), 124 U. S. Rep. 190; Scott, 422; and infra, 317 n. 
Wildenhus, the (1886), 120 U. S. Rep. i ; Scott, 225; and infra, 222 n. 
William, the (1806), 5 C. Rob. 385 ; Scott, 848; and infra, 495 n. 
William's Case (1797), Wharton's State Trials, 652; 2 Cranch, 83, note a; Scott, 

372 ; and infra, 243 n. 
Wilson V. Blanco (1889), 56 N. Y. Superior Court, 582 ; Scott, 266 ; and infra, 280 n., 

287 n. 
Winshw Case, the (1876), i Moore, Extradition; 4 Moore, Digest, § 596; and infra, 

267 n. 
1Fm«, demand for recall of (1847), 4 Moore, pp. 495-497; and infra, 282 n. 
Wolff V. Oxholm (181 7), K. B., 6 M. & S. 92 ; Scott, 497 ; and infra, 9, 363 n. 
Worcester v. Georgia (1832), 6 Peters, 515 ; and infra, 109 n. 
Wrech, Baron de (1772), Ch. de Martens, Causes dlebres, no; Snow, 97; and 

infra, 290 n. 

Yrujo, diamfsaal of (1804-1806), 4 Moore, Digest, pp. 508-5 iz ; and infra, 383 n. 
Zappa Ajfair, the, 6 Calvo, f{ 286-299 1 ^^'^ infra, 158 n., 296 n. 



LIST OF AUTHORITIES 

Abribat : Le d^troit de Magellan, 1902. 
Acollas, E. : Le droit de la guerre. Paris, 1886. 

Cours diteeataire de droit. 

Actes et documents de la deuxidme conference. La Haye, 1908 (cited Ac$es H 

doc. de la deux, confir.). 
Adams, G. B. : Civilization during the Middle Ages. N. Y., 1894. 
Adams, Henry : History of the United States, in 9 v. N. Y., 1889-1891. 
Adams, J. Q. : The Fisheries and the Mississippi, 1828. 
Adler, A : Die Spionage, 1906. 
Advocate of Peace, the. 

Ahrens, H. : Die Philosophie des Rechts, in 2 v. Wein, 1870-1871. 
Alcorta, A. M. : Cours de droit international public. Paris, 1887. 
Alfonzo X, the Wise : Las Siete Partidas, in 7 v. Madrid, 1807. 
Alvarez, A. : Le droit international am^ricain. Paris, 1910 (cited Alvarez). 
American Bar Association, Annual Reports of. 
American Historical Review. 

American Journal of International Law, since 1907 (cited A. J.), 
American Law Review (dted Am. Law Rev.). 
American Political Science Review (dted Am. Pol. Sci. Ret.). 
American Sodety for Judicial Settlement of International Disputes, Proceedings 

of, since 1910. Baltimore, 1910-. 
American State Papers, in 38 v. Washington, 183 2-1 861. 
Amos, Sheldon : Lectures on International Law. London, 1874. 

Political and Legal Remedies for War. N. Y., 1880. 

The Sdence of Jurisprudence. London, 1872. j 

The Sdence of Politics. 2d. ed. N. Y., 1883. 1 

Anderson, F. M. : The Constitutions and other Select Documents illustrative of I 

the History of France, 1 789-1901. Minneapolis, Minn., 1904. I 

Andr6, A. : De Farbitrage obligatoires, 1903. 
Andreani, A. : La condition des Strangers en France et la legislation sur la nationalit6 

fran^aise. Paris, 1896. 
Angell, Norman : The Great Illusion. London, 1910. 
Anitchow, M. : War and Labor. Westminster, 1900. 

Annals of the American Academy of Social and Political Science (dted Annals, etc.). 
Annis, L : Du droit de declarer la guerre, 1909. 
Annuaire de la vie international, since 1905. 

Annuaire de ITnstitut de droit international, since 1887 (dted Annuaire). 
Appleton, Henri : Des efifets des annexions de territoires sur les dettes de TEtat 

d6membr6 ou annex6. Paris, 1895. 
Arbiter : The Arbiter in Council, 1906. I 

Arbitration and Peace Congresses of 1907 and 1909. Proceedings of, in 2 v. 

N. Y., 1907 and 1909. 
Arbitration, Proceedings of American Conference on. Washington, 1896 and 1904. 

XX 



UST OF AUTHORITIES xxi 

Arbitraticm, Proceedings of Inteniational Convention of. Philadelphia, 18S4. 

Archiv diplomatiques. 

Ariga, Nagao : La guerre sino-japonaise au point de vue de droit international. 

Paris, 1896. 
La guerre nisao-japonaise au point de vue de droit international. Paris, 1907 

(dted Ariga). 
Aristotle: The Constitution of Athens; tr. by Kenyon, London, 1891. 
The Politics; tr. by Jowett, Oxford, 1885; and by Weldon, London^ 

1893- , 
Arminjou: Etrangers et proteg^ dans TEmpire ottoman, 1903. 

Ashbumer : The Rhodian Sea-Law. Oxford, 1909. 

Asser, T. M. C. : &£ments de droit international priv6. Paris, 1884. 

Atherley-Jones, L. A. : Conunerce in War. London, 1907 (dted Atherley- 
Jones). 

Atkinson, G. : International Morality. London, 1851. 

Atlantic Monthly. 

Aubert, L. : Paix japonaise. Paris, 1906. 

Am^cains et Japonais. Paris, 1908. 

Austin, John : Lectures on Jurisprudence or the Philosophy of Positive Law (Camp- 
bell's ed.). Jersey City, n.d., 2 v. (dted Campbell's ed.). 

Ayala, B. de: De jure et offidis bellids et disciplina militari. Duad, 1582, or 
Antverpiae, 1597. 

Azuni, D. A.: Systdme universel de prindpes de droit maritime de TEurope; 
traduit de I'ltalien, par J. M. Digeon. 1790. 

Baker, Sir S. : First Steps in International Law. London, 1899 (dted Baker, 

First Steps). 
Balch, Thomas W. : The Alaska-Canadian Frontier. Philadelphia, 1903. 

International Courts of Arbitration, 1899. 

The Alabama Arbitration, 1900. 

L'6volution de Varbitrage international, 1908. 

The new Cyneas of Emeric Cruc6, 1909. 

Banning, S. T. : Military Law made Easy, 1904. 

Bar, L. von: International Law, Private and Criminal, trans, with notes by 

G. R. Gillespie. Edinburgh, 1883. 

Theorie und Praxis des intemationalen Privatrechts, 2 v., 1889. 

The Theory and Practice of Private International Law. 2d ed. 

Gillespie's trans. 

Lehrbuch des intemationalen Privat- und Strafrechts, 1892. 

Barclay, Sir Thomas : Problems of International Practice and Diplomacy. London 

and Boston, 1907 (dted Barclay, Problems). 
Bardas, W. : Das dffentliche Seerecht Ostreichs. Wien und Leipzig, 1909. 
Barte : Le blocus pacific, 1898. 
Bamett, J. F. : International Agreements without the Advice and Consent of the 

Senate, in 15 Yale Law Journal (1905) ; revised and reprinted at Grand Rapids, 

1906. 
Barral de Monferrat, H. D. de : De Monroe k Roosevelt, 1823-1905. Paris, 1905. 
Baschet, A. : La dipiomatie v6nitienne. Paris, 1862. 

Les archives de Venise. Paris, 1870. 

Basdevant, J. : La revolution fran^aise et le droit de la guerre continentale. Paris, 

190X. 
in Les fondateurs du droit international, id. par Pillet (see Piilet). 



Todi UST OF AUTHORITIES 

Baty, T. : International Law in South Africa. London, 190a 

International Law. London, 1909. 

Britain and Sea Law. London, 191 1. 

Beach, C. F. : Commentaries on the Law of Public CoiporatioiiSb TiviiMfc«pnIlf^ 
1893. 

Beale, J. H. : A Selection of Cases on Conflict of Laws, in 3 v. 

Beaucourt, A. : Les commissions intemationales d'enqu^te, 1909. 

Beaumarchais, M. D. de : La doctrine de Monroe. Paris, 1898. 

Beling, £. L. : Die strafrechtliche Bedeutung der EzterritoriaUt&t. Bxeslau^ 
1896. 

Beilat, G. : La declaration de guerre en droit international. Paris, 1909. 

Bello : De re militari et de bello, circa 1558. 

Bello, A. : Prindpos de derecho intemacional, in 2 v. Madrid, 1883. 

Beloch, J. : Der italische Bund unter Rom's Hegemonie. Leipzig, 1880. 

Bemis, G. : American Neutrality. Boston, 1866. 

Pamphlets on the Recognition of Belligerency. Boston, 1866. 

Bemont and Monad: Mediaeval Europe from 395 to 1270. N. V., 1902. 

Bender, F. : Antikes Volkerrecht vomehmlich im Zdtalter des Polybius. Bonn, 
1911. 

Benoist, Ch. : Le Machiavdlism. Paris, 1907. 

Bentham, J. : Principles of International Law (in his Works, VIII, 1838). 

Principles of Morals and Legislation (in his Works, I, 1838). 

Benton, E. J. : International Law and Diplomacy of the Spanish-American War. 
Baltimore, 1908 (dted Benton). 

Bentwich, Norman : The Law of Private Property in War, with a chapter on Con- 
quest. London, 1907. 

The Declaration of London. London, 191 1. 

Bergbohn, Carl : StaatsvertrUge und Gesetze als Quellen des Volkerrechts. Dor- 
pat, 1876. 

Bernard, M. : Four Lectures on Diplomacy. London, 1868. 

A Historical Account of the Neutrality of Great Britain during the American 

Civil War. London, 1870 (cited Bernard, NeuiralUy, etc.). 

Bernard, Paul : Traits theorique et pratique de Textradition, in 2 v. 2e £d. Paris, 
1890. 

Bemier: De Toccupation militaire, 1884. 

Bemsten, Karl H. : Das Seekriegsrecht. Berlin, 1911. 

Bte de Berc, E. : Droit frangais de Texpulsion des Strangers. Paris, 1888. 

Bex, J. : Essai sur revolution de droit des gens. Paris, 19 10. 

Billot, A. : Traite de Textradition. Paris, 1874. 

Birkhimer, W. E. : Military Government and Martial Law. 2d. ed. rev. Kan- 
sas City, 1904. 

Biron and Chalmers : The Law and Practice of Extradition. London, 1903. 

Blachdre: L'air voi et le droit, 191 1. 

Blackstone, Sir W. : Commentaries on the Laws of England, in 4 v. Portland, 
1807. 

The same, in 2 v., ed. by Cooley. 3d ed. Chicago, 1884. 

Bletau, A. : De Tasile et du droit d'expulsion en droit fran^ais. Paris, 1886. 

Bluth, I. S. : The Future of War; trans, by R. C. Long. N. Y., 1899. 

^-^ la guerre, in 6 v.; trad, de russe. Paris, 1898. 

— — Der Krieg, in 6 v. Berlin, 1899. 

Blunuchli, J. K. : Le droit international codifi^ ; traduit de I'allemand par C. 
Urdy. Paris, 1895. 



LIST OF AUTHORITIES xxiii 

Bluntachli, J. K. : Das modeme Valkerrecht, 1868 (dted Bluntsdill). 

^— De la responsibOit6 et de riiresponsibilit^ du pape, 1877. 

Blutanch : Die Uraache der Vdlkerkriege, 1905. 

Bodin : Les immunity consulaires, 1899. 

Bodin, J. : De republica, 1591. 

Boeck, C. de : De pn>priet6 priv6e ennemie sous pavilion ennemie. Paris, i88a 

(cited Boeck or De Boeck). 
Boghitch^vitch, M. : HalbaonveriiniUlt. Berlin, 1903. 
Boiden, P. : L« lois de la guerre et les deux cx>nf^nce8 de La Haye (189^x907). 

Paris, 1908. 
Bokanowski : Les commissions intemationales d'enqu^te, 1908. 
Bompard : Le pape et le droit des gens, 1888. 

Bon, L. : La guerre russo-japonaiae et la neutrality. Montpellier, 1909. 
Bonet, Honors : L'arbre des battailes, 1493. 6d. par Nys, 1883. 
Bonfils, H. : Manuel de droit international public. 6th 6d. par Faucfaille. Paris, 

191 1 (dted Bonfils (Fauchille)). The references in this text are to the 5th 

ed., 1908. 
Bordwell, Percy : The Law of War between Belligerents. Chicago, 1908 (dted 

Bordwell). 
Borel, E. : £tude sur la aouverain^t^ et T^tat f6d^tif. Berne, 1886. 
Bomhak, K. : Allgemeine Staatslehre. Berlin, 1896. 
Bourgeois, L. V. A. : Pour la 8od6t6 des nations. Paris, 19 10. 
Bouvier, J. : A Law Dictionary adapted to the Constitution and Laws of the several 

States of the American Union, in 2 v. 6th ed. Philadelphia, 1856 ; new rev. 

ed. Boston, 1897. 
Bowles, T. G. : The Dedaration of Paris of 1856. London, 1900. 

Sea Law and Sea Power. London, 1910. 

Bray, F. E. : British Rights at Sea under the Dedaration of London. London, 

1911. 
Bray, J. De Inoccupation militaire. Paris, 1903. 
Breasted, J. H. : History of Egypt from the earliest Times. N. Y., 1905. 

Andent Records of Egypt, in 5 v. Chicago, 1906-1907. 

Brewer and Butler : Art. on International Law, in 22 Cyclopedia of Law and Pro- 
cedure, 1906. 
Bridgman, R. L. : World Organization. Boston, 1905. 

The First Book of World Law. Boston, 1911. 

Brie, S. : Theorie der Staatenverbindungen. Stuttgart, 1886. 

Die Fortschritte des Vaikerrechts seit dem Wiener Congress. Breslau, 1890. 

Brochet : De la contreband de guerre, 1900. 

BrouiDat : Etude sur la jurisdiction consulaire, 1898. 

Brugsch, H. K. : Egypt under the Pharaohs. 2d. ed. London, 1881. 

Brussels Declaration, Project of an International Declaration concerning the Laws 

and Customs of War adopted by the Conference of Brussels in 1874, in Scott, 

Texts of the Peace Conferences at the Hague, 382-389. 
Bruyas : De la d6daration de guerre, 1909. 
Bry, G. E. : Pr£ds 61£mentaire de droit international public. 5th ed. Paris, 1906 

(dted Bry). 
Bryce, James: Studies in History and Jurisprudence. N. Y., 1901. 
Budge, E. A. : History of Egypt, in 8 v. London, 1902. 

Bulmerincq, A. : Praxis, Theorie und Codification des Vdlkerrechts. Leipzig, 1874. 
V6lkerrecht oder intemationales Recht (in Marquardsen's Handbuch des 

oeffentlichen Rechts, I)^ 1887. 



xriv LIST OF AUTHORITIES 

Bulmerincq, A. : Consularrecht, in 3 Holtzendorff, 1887. 

Burckhardt, J. : The Civilization of the Renaissance ; tr. by Middlemoie. Loadoo. 

1892. 
Burlamaqui, J. J. : Principes du droit naturel. Gendve, 1 747-1 751. 

Principles of Natural and Politic Law, in 2 v. ; trans, by Nugent- 

Bumell and Hopkins : The Ordinances of Manu. London, 1891. 

Burroughs, Sir John : Sovereignty of the British Seas (1633). London, 1651. 

Bury, J. H. : History of Greece, in 2 v. Library ed. London, 1902. 

Buaolt, G. : in MiUler's Handbuch, IV. Mttnchen, 1892-1895. 

Bustamente y Sirven, A. S. de : La seconde conf6rence de la paiz. Paris, 1909. 

Butler, C. H. : The Treaty-Making Power of the United States, in 2 v. N. Y., 

1902. 
Bynkershoek, Cornelius van: De foro legatonim, 1721. 

Questionum juris publid, 1737. 

De dominio maris, 1702. 

Cabouat, I : Droit international des annexions de territoire et de leurs prind* 
pales consequences. Paris, 188 1. 

Callahan, J. M. : The Neutrality of the American Lakes and Anglo-American Re- 
lations. Baltimore, 1898. 

Diplomatic History of the Southern Confederacy. Baltimore, 1901. 

Calvo, C. : Le droit international thterique et pratique, in 6 v. 5e 6d. Paris, 1896 
(dted Calvo). 

Cameron, J. D. : Recognition of Cuban Independence. Report from the Senate 
Committee on Foreign Relations. Washington, 1896 (54 Cong., 2d sess., 
Senate Rep. 11 60). 

Campbell, R. G. : Neutral Rights and Obligations in the Anglo-Boer War. Balti- 
more, 1908.^ 

Caratheodory, Etienne : Du droit international concemant les grands cours d'eau. 
Paris, 1 86 1. 

in 2 Holtzendorff. 

Carlyle, R. W. and A. J. : A History of Medieval Political Theory in the West. 
Edinburgh add London, 1903-1909. 

Camazza-Amari, G. : Trait6 de droit international public en temps de paix, in 2 v. ; 
trad, par Montanari-Revest. Paris, 1880-1882. 

Carnegie, A. : A League of Peace. N. Y., 1911. 

Carpentier, P. (ed. and tr.) : Les lois de la guerre continentale : publication du grand 
£tat-major allemand, 1902. Paris, 1904. 

Carr£, H. : Les incidents de neutrality de la guerre russo-japonaise. Paris, n.d. 

Castel, B. : Du principe de la liberty des mers. Toulouse, 1900. 

Cauchy, E. : Le droit maritime international, in 2 v. Paris, 1862 (dted 
Cauchy). 

Chadwick, F. E. : The Relations of the United States and Spain, Diplomacy of. 
N. Y., 1909. 

Chauveau, E. : Le droit des gens ou droit international public, introduction. Paris, 
1 89 1 (dted Chauveau, Introduction). 

Chretien, A. : Principes de droit international public. Paris, 1893 (dted Chre- 
tien). 

Christine de Pisan : Le livre des faits d'armes et de chevalerie, circa 1500. 

Clark, E. C. : Practical Jurisprudence. Cambridge, Eng., 1883. 

Clarke, Sir £. G. : A Treatise upon the Law of Extradition. London, 4th ed.» 

1903. 



LIST OF AUTHORITIES xxv 

Clausewitz, C. von. : Vom Rriege. 6. Aufl. Berlin, 191 1. 

Clauss, Immanuel: Pie Lehre von den Staatsdienstbarkeiten. Tubingen, 

1894. 
Clavery, £. : Les Strangers au Japon, 1904. 

Clercq (A. J. H. de) and Vallat (C. de) : Guide pratique des consulata. Paris, 

1851. 5. 6d., 1898. 
Clercq, A. J. H. de : Recueil des trait^s de la France, in 10 v. Paris, 1864-187 2. 
Clunet, £d. : Offenses et actes hostiles commis par des particuiiers centre im ^tat 

ftranger. 2. €d. Paris, 1887. 
Cobbett, P. : Leading Cases and Opinions on International Law. London, 2d 

ed., 1892. 

Vol. I of 3d ed., 1909 (cited Cobbett 's Cases). 

Cockbum, Sir A. J. E. : Nationality. London, 1869. 

Cogordan, G. : La nationality au point de vue des rapports intemationaux. Paris, 

2. 6d., 1890. 
Cohen, A.: llie Declaration of London. London, 191 1. 
Columbia Law Review. 

Conder, C. R. : The Tell-Amama Tablets, 1893. 
Consular Regulations of the United States. Washington, 1896. 
Contemporary Review, the. 

Cooley, Th. : Constitutional Limitations. 7th ed. Boston, 1903. 
Coolidge, A. C. : The United Sutes as a World Power. N. Y., 1908. 
Coolidge, Mrs. M. G. B. : Chinese Immigration. N. Y., 1909. 
Corsi: L'occupation militaire, 1886. 
Couder, A. : De la condition des chemins de fer en temps de guerre. Nancy, 

1908. 
Coudert, F. R. : Practical Legal Difficidties incident to a Transfer of Sovereignty. 

N. Y., 1902. 

Addresses. N. Y. and London, 1905. 

Coulanges, F. de. : The Ancient City ; tr. by Small. 7th ed. Boston, 1899. 

Coulet, R. : La limitation des armaments. Paris, 1910. 

Cowan and Dunlap : Bibliography of the Chinese Question in the United States, 

1909. 
CrandaU, S. B. : Treaties, their Making and Enforcement. N. Y. and London, 

1904. 
Creasy, Sir E. S. : First Platform of International Law. London, 1876 (dted 

Creasy). 
Cromer, E. B., Earl of: Modem Egypt, in 2 v. N. Y., 1908. 
Cros: De la notion de contrebande de guerre, 1907. 
Cros, L. : Condition et traitement des prisonniers de guerre. Montpeilier, 

Z900. 
Crouzet : De Tinviolabilit^ et de Texemption de jurisdiction, 187s. 
Cruc^, £meric: The new Cyneas of Emeric Cruc6; ed. and tr. by J. W. Balch. 

Philadelphia, 1909. 
Curtius, F. D. : Des navires de guerre bellig^rants dans les eaux neutres. Bor- 
deaux, 1907. 
Curzon, G. N. C, Baron: Frontiers. Oxford, 1907. 
Cussy, F. de : Phases et causes c^l^bres du droit maritime des nations, in 2 v. 

Leipzig, 1856 (dted Cussy, Causes cHebres). 
Cybichowski, S. : Das antike Volkerrecht. Breslau, 1907. 

Die Seekabel in Kriegszeit. Kiel, 1906. 

Cydopedia of Law and Procedure, in 38 v. N. Y., 1901-1912 (dted Cyc). 



XKYi LIST OF AUTHORITIES 

Dana, R. H., Jr. (see Wheaton, Henry). 

Darby, W. E. : International Arbitration. International lYibtmals. 4th ed 

London, 1904 (dted Darby, Ini, Tribunols). 
Darut : De Tezpulsion, 1902. 

David, Rob't : La ptehe maritime au point de vue international. Paris, 1898. 
Davidson, W. M. : The Status of the Alien. London, 1909. 
Davis, G. B. : The Elements of International Law. 3d ed. N. Y., 1907. 
Debidour, A. : Histoire diplomatique de TEurope. Paris, 1891. 
Deldcaille, A. : Droit francaise de la naturalization en droit dvil et en dnnt inter- 
national. Paris, 1893. 
Delius, Hans : Das AusUeferungsrecht. Hannover, 1899. 
Descamp, E., Baron : La neutrality de la Belgique, 1902. 
Tableau ddcennal de Toiiganization, etc., de Tlnstitut de droit intemationaly 

1894-1904. Paris, 1905. 

Le droit de la paix, 1898. 

Desjardins, A.: L'arbitrage international. Paris, 1892. 

Le droit commercial maritime, 1898. 

Deqxignet, Frantz: Cours de droit international public. 4. €d. Paris, 1910 

(cited Deqmgnet, or Despagnet, Cours). The 2d ed. was publ. in 1899. 

La guerre sud-africaine au point de vue de droit international. Paris, i903, 

Precis de droit international priv6e. 5. €d. Paris, 1909. 

Essai sur les protectorats, 1896. 

La diplomatie de la troisidme r^ublique et le droit des gens, 1904. 

Deutsche Rundshau. Berlin, 1874 — date. 

Dicey, A. V. : A Treatise on the Law of Domicile in England. London, 1870. 

The Conflict of Laws, with Notes of American Cases by J. B. Moore. London, 

1896. 

3d ed. of Conflict of Laws (without Moore's Notes), 1908. 

Diodonis, Siculus: The Historical Library: the Antiquities, etc.; tr. by G. 

Booth. London, 1700. 
Donnadieu, L. : Essai sur la th6orie de Tdquilibre. Paris, 1900. 
Drago, Sefk)r: Cobro ooerdtivo de duedas publicas, 1906. 

ip I American Joiimal of International Law, 1907. 

Dreyfus, F. : L'arbitrage international. Paris, 1892. 

Droin, C. : L'ezterritorialit6 des agents diplomatiques, 1895. 

Duboc, E. : Le droit de visite et la guerre de course. Paris, 1902. 

Du Cange, Ch. : Des guerres privte, 1838. 

Ducrocq, L. : Repr^sailles en temps de paix. Paris, 1901. 

Duggan, S. P. H. : The Eastern Question. N. Y. and London, 1902. 

Duguit, L. : Etudes de droit public. L'6tat, le droit objectif et la loi positive. 

Paris, 1 901. 
Dumant : Souvenir de Solferino, in Miiller's Entstehungsgeschichte des Roten- 

kranzes, 1897. 
Dumas, A. : £tude sur le jugement desprises maritimes en France, 1908. 
Dumas, J.: Les sanctions de Tarbitrage. Paris, 1905. 
Dmnont, J. : Nouveau recueil de traits, etc., in 2 v. Amsterdam, 17 10. 
Dunning, W. C. : A History of Political Theories, Andent and Mediaeval N. Y., 

1902. 

A History of Political Theories from Luther to Montesquieu. N. Y., 1905. 

Du Payrat, A. U. : Le prisonnier de guerre dans la guerre continentale. Paris, 1910. 
Duplessix, E. : La loi des nations. Paris, 1906. 
L'oiganisation international. Paris, 1909. 



LIST OF AUTHORITIES xxvii 

Duplessix, E. : Vers la paix. Paris, 1903. 

Dupuis, Charles : Le droit de la guerre maritime d'apr^ les ooof 6rences de La Haye 

et Londres. Paris, 19x1. 
Le droit de la guerre maritime d'aprte les doctrines anglaises contem- 

poraines. Paris, 1899. 
Le principe d'6quilibre et le concert Euioptei de la paix de Westphalie 

& Tacte d'Algdsiras. Paris, 1909. 
Durkheim, E. : De la division du travail social. 3. 6d. Paris, 1904. 
Dyer, L. : Machiavelli and the Modem State. Boston and London, 1904. 

Edgington, T. B. : The Monroe Doctrine. Boston, 1904. 

Egger, A. E. : £tudes historiques sur les trait^s publics chez les Grecs et chez les 

Romains. Nouv. 6d. Paris, 1866. 
Eichthal, E. : Guerre et paix Internationales. Paris, 1909. 
Elliot, C. B. : The United States and the Northeastern Fisheries : A History €i 

the Fishery Question. Minneapolis, 1887. 

The Law of Municipal Corporations. 3d ed., 1910. 

The Principles of the Law of Public Corporatbna. Chicago, 1898. 

Emerton, E. : Mediaeval Europe (8x4-1300). Boston, 1895. 

Emery, G. F. : Laws relating to Foreigners and Foreign Corporations. London, 

1908. 
Encyclopedia Britannica, Art. on Int. Law. nth ed. Cambridge, Eng., x9(o- 

X9XI. 
Engelhardt, Ed.: Du regime conventionnel des fleuves intemationauz. Paris, 

1879. 
Histoire de droit fluvial conventionnel. Paris, 1889. 

Les protectorats andens et modemes. Paris, 1896. 

Esmein, J. P. : Cours fldmentaire rhistoire du droit franfais. 2e 6d. Paris, 

1895. 
Espinas, A. : Des sod^^ animales. Paris, 1877. 

Fabre, P. : Des servitudes dans le droit international public. Paris, X90X. 

Faguet, E. : Le padfisme. Paris, 1908. 

Falcke: Die Hauptperiode der sog. Friedensblokaden. Leipzig, X891. 

Farra, R. A. : Les effets de la clause de la nation la plus favoris^e et la q>6cialization 

des tariffs douaniers. Paris, 19x3. 
FauchiUe, P. : De blocus maritime. Paris, x883. 

La diplomatie fran^aise et la ligue des neutres en X780. Paris, X893. 

Manud de la Croix-Rouge. Paris, X908. 

F6rand-Girand : Droit d 'expulsion des Strangers. Paris, X899. 

fitats et souverains, etc., in 3 v. Paris, X89S. 

Occupation militaire, x88x. 

Des requisitions militaires, X893. 

De rextradition. Paris, X890. 

Ferguson, J. H. : Manual of International Law, in 2 v. Hongkong, x884*i885. 

The International Conference at The Hague. The Hague, 1899. 

Field, David Dudley : Outlines of an International Code. 3d ed. N. Y., X876 

(dted Field, Code). 
Fiore, P. : Nouveau droit international public. 3. 6d. ; trad, de I'italien par Ch. 

Antoine, in 3 v. Paris, x88o (dted Fiare or Fiore, TraiU). 
— — Le droit international codifide et sa sanction juridique. Nouv. ed., trad, de 

Fitalien par Ch. Antoine. Paris, X9xi. 



xxviii LIST OF AUTHORITIES 

Fiore, P. : Le droit international priv^ ; trad, de la 4. €d. italienne (1902) pur Ch. 

Antoine. Paris, 1907-. 
Trait6 de droit p^al intemationale et de Teztradition ; trad, par Ch. Antoine, 

in 2 V. Paris, 1880. 
Fischer, Der Telegraphic und das Vdlkerrecht, 1876. 

Flassen, M. de : Histoire gltaixaXe de la diplomatie fnmcaise, in 7 v. Paris, 181 1. 
Fleischmann, M. : Gnindgedanken eines Luftrechts. Miinchen, 1910. 
De Flocker, A. von : De Tintervention. Paris, 1896. 
Flourens, M. : De la nation de contrebande de guerre. Paris, 1907. 
FoUeville, D. de : Trait6 thforique et pratique de la naturalization. Paris, 1880. 
Fontenay : Des droits et des devoirs des Etats entre eux, 1888. 
Foote, J. A. : A concise Treatise on Private International Jurisprudence, based on 

the decisions in the English Courts. 3d ed. London, 1904. 
Foreign Relations of the United States, Papeis relating to (1883-1907), in 33 v. 

Washington, 1883-1910 (dted Far. Rd.), 
Fortnightly Review, the. 
Foster, John W. : A Century of American Diplomacy, 1 776-1876. Boston, 1911. 

American Diplomacy in the Orient. Boston and N. Y., 1903. 

Arbitration and The Hague Const., 1904. 

Diplomatic Memoirs, in 2 v., 1909. 

The Practice of Diplomacy, 1906. 

Fourchault, C. : De la m^ation. Paris, 1900. 

Founder, A. : Napoleon I : eine Biographie. 3 v. in 3. Prag, 1889. 

Napoleon the First. N. Y., 1903. 

The same, in 2 v. N. Y., 191 1. 

Fowler, W. W. : The City-State of the Greeks and Romans. London and N. Y., 

1893. 
Franklin, F. G. : The Legislative History of Naturalization in the United States, 

1 776-1861. Chicago, 1906. 
Eraser : A Modem Campaign, 1905. 
Freeman, £. A. : History of Federal Government in Greece and Italy, ed. by Bury. 

2d ed. London, 1893. 
Fremont, R. : De la saisi des navires en cas de blocus. Paris, 1899. 
Freydnet, Ch. L. de : La question d'Egypt. 2. 6d. Paris, 1905. 
Fricker : Von Staatgebiet, 1867. 
Fried, A. H. : Das intemationale Leben der Gegenwart. Leipzig, 1908. 

Die gnmdlagen des revolutionSren Padfismus. Tttbingen, 1908. 

Der kranke Rrieg. Leipzig, 1909. 

Die modeme Friedensbewegung. Ldpzig, 1907. 

Pan-Amerika. Berlin, 191 o. 

Die zweite Haager Konferenz. Leipzig, 1907. 

Annuaire de la vie intemationale. 2d series, since 1908. 

Friedemann : Die Lage der Kriegskundschafter und Kriegspione. 1892. 
Fulton, T. W. : The Sovereignty of the Sea. Edinburgh and London, 191 1. 
Funck-Bretano et Sorel: Precis du droit des gens. Paris, 1877 (dted Funck- 

Bretano et Sorel). 
Fyffe, C. A. : A History of Modem Europe, in 3 v. N. Y., 1881, 1890. 

Gabba : Question! di dirritto civile, 1880. 

Gaborit, R. : Questions de neutrality maritime soulev6es par la guerre russo- 

japonaise. Paris, 1906. 
Gairal, F. : Le protectorat international. Paris, 1896. 



UST OF AUTHORITIES xxix 



Garcia de la Vega : Guide pratique des agents politiques du ministte des 

^trangftres de Belgique. 4. 6d. Paris, 1899. 
Garden, Comte de G. : Traits de dipJomatie. Paris, 1833. 
Gareis, K. : Institutionen des Volkeirechts, 1887. 
Garner, J. W. : Introduction to Political Science. Cincinnati, 1910. 
Geffcken, F. H. : Die Gesamtinteresse als Grundlage des Staats- und V^Slkenechts. 

Leipcig, 1908. 

Die Gesandtschaftsrecht, etc., in 3 Holtzendorff's Handbuch, 1887. 

Das Recht der Intervention, in 4 Holtzendorff. 

Das Seekriegsrecht und die Neutralitiit, in 4 Holtzendorff, 1889. 

Die volkerrechtliche Stellung des Papstes, in 2 HoltzendotfF, 1887. 

Gegem, Freiherr von : Critik des Vdlkerrechts. Leipzig, 1840. 

Geneva Arbitration, 1871 : Case of the United States; case of Great Britain; 

British counter-case, etc. 
Geneva Convention of 1864 for the Amelioration of the Condition of the Side and 

Wounded of Armies in the Field, in Scott, Texts of the Peace Conferences at 

The Hague, 37^378. 

Additional Articles, Ibid., 378-381. 

Gentilis, A. : De kgationibus, 1585. 

■ Hispanicae advocationis, 16 13. 

De jure belli, 1598; ed. by'T. E. Holland, Ozonii, 1877. 

Gerard, L. : Des cessions d^uisto de territoires en dixnt intcniatioiial pabUc. 

Paris, 1904. 
Gessner, L. : Reform des Kriegsseerechts. Berlin, 1875. 
Le droit des neutres sur mer, 1876. 

■ Rriegfiihrende und Neutrale Michte, 1877. 

Die Staatsvertr&ge, in 3 HoltzendorfiF, 1887. 

Giddings, F. H. : The Principles of Sociology. N. Y., 1898. 
Gidel, G. : Des effets de Fannexion sur les concessions. Paris, 1904. 
Gierke, Otto : Johannes Althusius und die naturerrechtlichen Theorien, 1880. 
^^ Political Theories of the Middle Ages ; tr. by Maitland. Cambridge, Eng., 

1900. 
GiUman, D. C. : James Monroe, in American Statesmen Series. Boston, 1883. 
Gillot : La revision de la Convention de Geneve, 1902. 
Giovanni de Legnano : De bello, de represaliis, et de duello, 1477. 
Glass, H. : Marine International Law. Annapolis, 1885. 
Glenn, £. F. : Handbook of International Law. St. Paul, 1895. 
Glier, L. : Die Meistbegiinstigungs-Klausel. Berlin, 1905. 
Goodspecdf G. S. : History of the Babylonians and Assyrians. N. Y., 1903. 
Gorianov, S. M. : Le Bosphore et les Dardanelles. Paris, 1910. 
Gould, J. M. : Treatise on the Law of Waters. Chicago, 1900. 
Green Bag, the. 
Greenidge, A. H. J. : A Handbook of Greek Constitutional History. London and 

N. Y., 1902 (dted Greenidge, Greek Const. Hist,), 

Roman Public Life. 

Griffen, A. P. C. : Select List of References on Chinese Immigration, 1904. 
— A List of Books on Immigration, 1907. 

List of References on International Arbitration, 1908. 

On Recognition in Int. Law and Practice, 1904. 

Grivaz, F. : Nature et effets du principe de I'asile politique. Paris, 1895. 
Grotius, Hugo : De jure belli ac pads (1625) ; accompanied by an abridged trans. 

by W. Whewell, in 3 v. Cambridge, 1853 (dted Grotius). 



XXX LIST OF AUTHORITIES 

GcoUus, Hugo : The same ; trans, by Whewell. Cambridge, 1853. 

De man libera (1609), 1633. 

De jure prascUe commentarius ; ed. Hamaker, 1868. 

Grfinwald, Fr. : Das Luf tschiff in volkerrechtUcher und strafrechtUcher Benehimg, 

Hamiover, 1908. 
Guelle, J. : Precis des lots de la guerre sur tene, ia 2 v. Paris, 1884. 
Guihdneuc, O. : La marine auziliaire en droit international. Paris, 190a 
Guynot-Boissite, £. : Du blocus maritime. Rennes, 1899. 

Hague Conventions of 1899 and 1907, in Higgins, Peace Conferences; or Scott, 

Texts of the Peace Conferences at The Hague. 
Hall, W. E. : A Treatise on International Law. Ozfoid, 6th ed. (by J. B. Atley), 

1909 (dted Hall). 
Foreign Powers and Jurisdictions of the British Crown. Oxford, 4th ed., 

1895. 
Halleck, Gen. H. W. : International Law, in 2 v. 3d ed., by Baker. London, 1893 

(dted HaUeck (Baker's 3d ed.)). 

Rights and Duties of Neutrals. London, 1874. 

Harcourt, Sir W. : Letters of Historicus on some Questions of International Law. 

London, 1863. 
Harding, S. B. : Essentiab in Medisval and Modem History. Cincinnati, 1905. 
Harris, T. : The Trent Affair. Indianapolis, 1896. 
Hart, A. B. : Handbook of the History, Diplomacy, and Government of the United 

States. Cambridge, 1903. 
Manual of American History, Diplomacy, and Government. Cambridge, 

1908. 

The Foundations of American Foreign Policy. N. Y., 1901. 

Introduction to the Study of Federal Government. Boston, 1891. 

Hartmann, A.: Institutionen des praktischen Vdlkerrechts in Friedensxeiten. 

2 AuflL Hannover, 1878. 
Hautefeuille, L. B. : Des droit et des devoirs des nations neutres en temps de guerre 

maritime, in 3 v. Paris, 1868 (dted Hautefeuille). 
Histoire des origines, des progrte, et des variations du droit maritime inter- 

national. 2e 6d. Paris, 1869. 

Questions de droit international maritime. Paris, 1868. 

Hawley, J. G. : Law and Practice of International Extradition between the United 

States and those Foreign Countries with which it has Treaties of Extradition. 

Chicago, 1893. 
Hay, John : Addresses. N. Y., 1906. 
Hazeltine, H. D. : The Law of the Air, 191 1. 
Hazen, C. D. : Europe since 1815. N. Y., 1910. 
Heffter, A. W. : Le droit international de TEurope. 4. id. par F. H. Geffcken. 

Berlin and Paris, 1883 (dted Heffter (Geffcken)). 
Heilboro, Paul : Das System des Vdlkerrechts entwickelt aus den vdlkerrecht- 

lichen Begriffen. Berlin, 1896. 

Das vblkerrechtliche Protektorat. Berlin, 1891. 

Heimburger, K. F. : Der Erwerb der Gebietshoheit. Karlsruhe, 1888. 
Heineccius, J. G. : De navibus, 17 21. 

Elementa juris nature et gentium, 1738. 

Helie, F^ and A. T. : Les constitutions de la France. Paris, 1879. 

Henderson, E. F. : Select Historical Documents of the Middle Ages. London^ 

1892. 



5tr 



•»*» 



o 



. LIST OF AUTHORITIES 

Henderson, J. B., Jr. : American Diplomatic Questions. N.Y., 1901. 
Henriques, H. S. Q. : The Law of Aliens and Naturalization. London, 1906. 
Hermann, K. F. : Lehrbuch der Griechische Antiquit&ten, in 4 v. Freiburg, 

1882-1889. 
Herod, J. R. : Favored Nation Treatment. N. Y., 1901. 
Herodotus: The History of Herodotus, in 2 v. Trans, by G. C. Macaulay. 

London and N. Y., 1904. 
Heron, D. C. : Jurisprudence. San Fnmcisco, n.d. 

Hershey, A. S. : The Calvo and Drago Doctrines, in i American Journal of Inter- 
national Law, 1907. 
The International Law and Diplomacy of the Russo-Japanese War. N. Y. 

and London, 1906 (dted Hershey). 
Hertslet, Sir Edw. : Map of Europe by Treaty since 1814, in 4 v. London (dted 

Hertslet). 
Heyking, A. de : L'exterritorialit6, 1889. 
Higgins, A. P. : The Hague Conferences and other International Conferences. 

Cambridge, Eng., 1909 (dted Higgins). 

The Binding Force of International Law. Cambridge, Eng., 1910. 

Hill, D. A. : A History of Diplomacy in the International Development of Eiiiope, 

in 2 V. N. Y. and London, 1905-1906. 
World Organization as affected by the Nature of the Modem State. N. Y., 

X911. 
Hilty, Karl : Die Neutralit&t der Schweiz in ihrem heutigen Auffassung. Bern, 1889. 
Hinckley, F. E. : American Consular Jurisdiction in the Orient, 1906. 
Hirsh : Kriegskonterbande und verbotene Transporten in Rriegzeiten, 1897. 
Hishida, Seiji G. : The International Position of Japan as a Great Power. N. Y.j^ 

1905. 
Hobbhouse, L. T. : Democracy and Reaction. London, 1904. 

Morals in Evolution, in 2 v. London, 1906. 

Hogan, A. E. : Padfic Blockade. Oxford, 1908. 

Hold von Femeck, A. : Die Kriegskonterbande. Wien, 1907. 

Holland, T. E. : Studies in International Law. Oxford, 1898. 

The Laws of War on Land. Oxford, 1908. 

The Elements of Jurisprudence. loth ed. Oxford, 1908. 

Letters to "the Times" upon War and Neutrality. N. Y. and London, 1909. 

Proposed Changes in Naval Prize Law. London, 191 1. 

A Manual of Naval Prize Law. London, 1888. 



-The European Concert in the Eastern Question. Oxford, 1885. 



Hollatz, H. W. W. : Begriff und Wesen der Staatsservituten. Berlin, 1908. 

Holls, F. W. :The Peace Conference at The Hague. N. Y., 1900. 

Holtzendorff, F. von : Handbuch des Volkerrechts, in 4 v. Berlin, 1885-1889 (dted 

Handbuck or Holtzendorff). 

£l6ments de droit international public. Paris, 1891. 

Eroberungen und Erobenmgsrecht, in Handbuch. 

Die Prindpien der Politik. Berlin, 1869. 

Hosack, J. : On the Rise and Growth of the Law of Nations. London, 1882. 

Howard : The German Empire, 1906. 

Huber, M. : Das Neutralitatsrecht in seiner neusten Gestaltung, 1908. 

Die Staatensuccession. Leipzig, 1898. 

Htibler, B. : Die Magistraturen des volkerrechtlichen Verkehrs und die Exterri- 

torialitfit. Berlin, 1895. 
Hiibner, M. von : De la saisi des b&timents neutres. London, 1778. 



xxxii LIST OF AUTHORITIES 

Hull, W. I. : The Two Hague Conferenoos. Bofiton, 1908. 

Hume, David : Essays moral, political, and literary, in 3 v. ; ed. by Gfeen and 

Grose. New ed. London and N. Y., 1889. 
Hunt, GaiUard : The American Passport. Washington, 1898. 

Ihering, R. yon : Das Zweck im Recht, in 2 v. 2d ed. Leipzig, 1884. 

Geist des rdmischen Rechts, in 3 v. 4th ed. Leipag, 1891. 

Imbart de Latour, J. J. B. : La papaut6 en droit international^ i895« 

Le mer territoriale. Paris, i88g. 

Lnbert, H. M. : Les emprunts d'^tats Strangers. Paris, 1905. 

Independent, the New York. 

Index to the Literature of International Law. Washington, 1887. 

Instructions for the Government of the Armies of the United States in the Field 

(1865) by Frands Lieber, in Scott, Texts at the Peace Conferences of The Hague^ 

350 S. (died A. I.), 
Instructions to the Diplomatic officers of the United States, 1897. 
Instructions to Her Majesty's Consukr Officers, 1893. 
International American Conference, 1889-1890, in 4 v. Washington, 1890. 
International Law Association, Reports of. 
Interparliamentary Union for Promotion of International Arbitration, Reports of^ 

since 1893. 
Ishham : The Fishery Question. N. Y., 1887. 

Jacobs, M. W. : A Treatise on the Law of Domicile. Boston, 1887. 

Jacomet, R. : La guerre et les traits. Paris, 1909. 

Janet, Paul : Histoire de la sdence politique, in 2 v. $c 6d. Paris, 1887. 

Jeancourt-Galignani, A. : L'immigration en droit international. Paris, 1908. 

Jellinek, Georg : Das Recht des modemen Staates. Allgemeine Staatalefare. 2» 

Aufl. Berlin, 1905. 

Die Lehre von den Staatenverbindungen. Wien, 1882. 

Gesetz und Verordnung. Freiburg, 1887. 

Die rechtliche Natur der StaatenvertrSge. Wien, 1880. 

System der subjektiven dffentlichen Rechte. Freiburg, 1892. 

Die sodal-ethische Bedeutung von Recht, Unrecht und Strafe, 1878. 

Jenks, Edw. : Law and Politics in the Middle Ages. N. Y., 1898. 

Jenkyns, Sir Henry: British Rule and Jurisdiction beyond the Seas. Oxford^ 

1902. 
J^, G. : £tude thforique et pratique sur Toccupation. Paris, 1896. 
Johnson, W. F. : Four Centuries of the Panama Canal. N. Y., 1906. 
Jones, C. L. : The Consular Service of the United States. Philadelphia, 1906. 
Jouhannaud : Les cables sous-marines, 1904. 
Journal de droit international priv6, et de la jurisprudence comparde, since 1874^ 

6d. par Clunet (cited /. D. /.). 
Jousset : Le blocus k la conference de Londres. Paris, 19x0. 
Julliot, Ch. : De la propriety du domain aerien, 1909. 
Juraschek : Personal and Real Union, 1878. 
Jurisch : Grundlage des Luftrechts, 1877. 

Kaltenbom, Karl von : Kritik des Volkerrechts, 1837. 

Die VorlaUfer des Hugo Grotius, 1848. 

Kamarowsky, Count L. : Le tribunal international. Paris, 1887 (cited Kama-- 
rowsky). 



LIST OF AUTHORITIES xxxiii 

Kant, Immanuel : Perpetual Peace ; tr. by B. F. Thieblood. Boston, 1897. 

Karlowa, Otto : Romische Rechtageschichte, in 2 V. Leipzig, 1 885-1901. 

Kasson, J. A.: Information respecting Reciprocity and the existing Treaties. 
Washington, 1901. 

The Evolution of the Constitution of the United States of America and His- 
tory of the Monroe Doctrine. Boston and N. Y., 1904. 

Kaufmann, W. : Die Rechtskraft des intemationalen Rechts. Stuttgart, 1899. 

Kausen, J. : Die Radio-telegraphie im V61kerrecht. MOnchen, 1910. 

Keasbey, L. M. : The Nicaragua Canal and the Monroe Doctrine. N. Y. and Lon- 
don, 1896. 

Kebedgy, M. S. : De Tintervention. Paris, 1890. 

Die diplomatischen Privilegien. Bern, 1901. 

Keller: Requisition und Kontribution, 1898. 

Kent, James : Commentaries on American Law, in 4 v. 1 2th ed. Boston, 1884. 

Commentary on Intematioiud Law. 2d ed. By J. T. Abdy. (Cambridge 

and London, 1878 (dted Kent, Com.).) 

Kleen, R. : Lois et usages de la neutrality, in 2 v. Paris, 1898-1900 (dted 
Kleen). 

De la contrebande de guerre. Paris, 1893. 

KlUber, J. L. : Droit des gens modeme de I'Europe, in 2 v. Paris, 1831. 

Nouvelle 6d. par A. Ott. Paris, 1874 (dted KlUber). 

Knight : Des 6tats neutres au point de vue de la contreband de guerre, 1903. 

Koch, C. G. de : Traits complet de diplomatie, in 2 v. Paris, 1833. 

Koenig : Handbuch des deutschen Konsularwesen. 6. Aufl., 1902. 

Kraemer : Das unterseeischen Telegraphenkabel im Kriegszeiten, 1903. 

Krauske, O. : Die Entwickelung der standigen Diplomatie. Leipzig, 1885. 

Kriegegebrauch im Landkriege. Berlin, 1902. 

Kropotkin P. A. : Mutual Aid, a Factor of Evolution. N. Y., 1902. 

Laband, Paul : Das Staatsrecht des Deutschen Reiches, in 2 v. 3d ed. Freiburg, 

1895. 
Deutsches Reichsstaa,tsrecht. 3d ed., 1907. 

Laband (P.) and Stodrk (F.) : Archiv fUr dffentliches Recht. Frdburg, since 1886 

(dted Arckiv). 
Labrouse, P. : Des servitudes en droit international public. Bordeaux, 19x2. 
Ladd, Wm. : Essay on a Congress of Nations, 1840. 
Laf argue, Paul : Les repr^sailles en temps de paix. Paris, 1898. 
La Fontaine, Henri: Bibliographie de la paix et de Tarbitrage international. 

Monaco, 1904 - . 
Lagorgette, Le r6le de la guerre. Paris, 1906. 

Lake Mohonk Conference on International Arbitration, Reports of, since 1895. 
Lalor, J. J. : Cydopaedia of Political Sdence, Political Economy, and of the Political 

History of the United States. Chicago, 1882-1884. 
Lamasch, H. : Das Recht der Auslieferung wegen politischer Verbrechen. Wien, 

1884. 
Lamatabois, B. : La correspondance t^l^graphique dans les relations intemationales. 

Bordeaux, 1910. 
Lameire, I. : Th6orie et pratique de la conqu^te dans Tanden droit. £tude de 

droit international anden. Paris, 1902. 
*— Th6orie et pratique de la conqu^te dans Tanden droit. Les occupations 

militaire en Eq>agne pendant les guerres de Tanden droit. Paris, 1905. 
— Les occupations militaires de TUe de Minorque, etc. Paris, 1908. 



xxxiv LIST OF AUTHORITIES 

Lameire, I : Th6orie et pratique de la conqu6te dans Tancien droit. Les oo 

cupations militaires ea Italic pendant les guertes de Louis XIV. Paris, 1903. 
Lanlrey, Pierre : The History of Napoleon the First, in 4 v. N. Y., 1804. 
Langhard : Das Recht der politischen Fremdauswanderung, 1891. 
Lapradelle, G. de : De la nationality d'origine. Paris, 1893. 
La nouvelle thte du refus de charbon aux bellig^rants dans les eauz neuters. 

Paris, 1904. 
Larrividre : Des consequences des transfonnations territoriales des £tat8 sur les 

trait^s anterieurs. Paris, 1892. 
Lasson, A. : Princip und Zukunft des Volkerrechts. Berlin, 187 1. 
Latan^, J. H. : The Diplomatic Relations of the United States and Spanish America. 

Baltimore, 1900. 
Latifi, A. : Effects of War on Property. London, 1909. 
Laurent, F. : Etudes sur Thistoire de lliumanit^, in 18 v. . 2e 6d. Paris. 1865-1880 

Droit civil international, in 8 v. Bruxelles, 1881-1882. 

Laveley : Des causes actuelles de la guerre et de Tarbitrage, 1873. 

Law Magazine and Review. 

Law Quarterly Review (cited Law Quar. Rev. or L. Q. R.). 

Lawrence, T. J. : Essays on some Disputed Questions in Modem International Law. 

2d ed., 1885. 
Principles of International Law. 4th ed., 191 1. 3d ed., Boston, 1909. 

(cited Lawrence, Principles). 

A Handbook of Public International Law. 7th ed. London, 1909. 

International Problems and Hague Conferences. London, 1908. 

-^ — War and Neutrality in the Far East. 2d ed. N. Y. and London, 1904 

(dted Lawrence, War and Neutrality). 
Lawrence, W. B. : Commentaire sur les ^Idments du droit international et sur 

rhistoire des progrds du droit des gens de Henry Wheaton, in 4 v. Leipzig, 

1868-1880. 

Visitation and Search, Boston, 1858. 

Leacock, S. B. : Elements of Political Science. Boston and N. Y., 1906. 
Lebraud, E. : La guerre hispano-am^ricaine et le droit des gens. Paris, 1904. 
Lecky, W. E. H. : The Map of Life. N. Y., London, etc., 1901. 
Lee- Warner, H. ; The Protected Princes of India, 1894. 

The same. The Native States of India. London, 1910. 

Le Fur, L. : £tude sur la guerre hispano-am6ricaine de 1898. Paris, 1899. 

fetat f6d6ral et conf6ddration d'£tats. Paris, i8g6. 

Lehr, P. E. : Tableau g6n6ral de Torganization, des travaux et du personnel de 

I'Institut de droit international, 187^-1892. Paris, 1893 (cited Tableau). 

La nationality dans les prindpaux Etats du globe. Paris, 1909. 

Manuel th6orique et pratique dans agents diplomatiques et consulaires frangais 

et 6trangers. Paris, 1888. 
Leist, B. W. : Alt-Arisches Jus Gentium. Jena, 1889. 
L6monon, E. : La Conference navale de Londres. Paris, 1909. 

La sfeconde Conference de la paix. Paris, 1908 (dted Ldmonon). 

Le Normand: La reconnaissance international. 2. dd., 1899. 

Lentner, F. : Das Recht im Kriege. Wien, 1880. 

Le Ray, A : Les commissions intemationales d'enqudte au XX°** sidcle. Samur, 

1910. 
Leroy, G. : La guerre maritime. Bruxelles, 1900. 
Leseur, P. : Introduction k un cours de droit international public. Paris, 1893 

(dted Leseur, Introduction). 



LIST OF AUTHORITIES xxxv 

LetoiirneatiXy Ch. : La guerre dans les diverses raoes humahii. Paris, 1895. 

Leval, Gaston de : "Dtlk protection diplomatique des nationauz a T^tranger. Bniz- 
elles, 1907. 

Lewis, John : A Treatise on the Law of Eminent Domain in the United States. 
Chicago, 1888. 

Lewis (W.) and Boyens (£.) : Das deutsche Seerecht, in 2 v. Leipzig, iBgy-i^oi 
(dted Boyens-Lewis). 

Lieber, Francis : Miscellaneous Writings, in 2 v. Philadelphia, i88i. 

Instructions, etc. (see Instructions). 

Lioux, J. : Le droit de belligerance dans les demidrs guerres contincntaks. Tou- 
louse, IQIO. 

Lioy, D. : The Philosophy of Right. Trans, by Hastie^ in 2 v., 1891. 

Lippman : Die Konsularjurisdiktion im Orient, 1906. 

Lisboa, H. C. R. : Les fonctions diplomatiques en temps de poix. Santiago de 
Chile, 1908. 

Liszt, F. £. von : Das Viilkerrecht systematisch daigestellt. 3. Aufl. Berlin, 2904 
(dted Liszt). 

Loewenthal, E. : Geschichte des Friedensbewegung. Berlin, X907. 

London Times, the. 

Longuet, F. : Le droit actuel de la guerre terrestre. Paris, 1901 (dted Longuet). 

Lorimer, James : The Institutes of the Law of Nations, in 2 v. Edinbuigh and 
London, 1883-1884. 

The Institutes of Law. 2d ed. Edinburgh, 1880. 

Lorriot, A. A. : De la nature de FocaqNition de gueixe. Paris, X903. 

Loubeye : Les prindpes du droit a£rien, 191 1. 

Lowell, A. L. The Government of England, in 2 v. N. Y., 2908. 

Government and Parties in Continental Europe, in 2 v. N. Y., 2896. 

Luchaire, A. : Manuel des institutions fran^aises. Paris, 1882. 

Lueder, C. : Krieg und Kriegsrecht, in 4 Holtzendorff, 2889. 

La C^onvention de Genive. Erlangen, 1876. 

Lushington, G. : Manual of Prize Law. London, 2866. 

Lycklama k Nijehalt, J. : Air Sovereignty. The Hague, 2920. 

Mably, G. B. de, abb^ : Le droit public de TEtixope. Gendve, 2748. 

Macaulay, T. B. : The History of Enghud, in 5 v. N. Y., 2879. 

Machiavelli, Niccok) : 111 prindpe. Ed. by L. A. Burd. Oxford, 2892. 

Mackintosh, Sir J. : A Discourse on the Study of the Law of Nature and Nations. 
London, 2828. 

The same, in his Miscellaneous Works, 1878. 

Magoon, C. E. : Reports on the Law of Civil Government in Territory subject to 
Military Occupation by the Military Forces of the United States. Washing- 
ton, 2902. 

Mahaffy, J. P. : Sodal Life of the Greeks. 4th ed. London, 2879. 

Mahan, A. T. : The Influence of Sea Power upon History. Boston, 2894. 

The Influence of Sea Power upon the French Revolution and Empire, in 2 v., 

2793-2822. Boston, 2892. 

The Interest of America in International Relations. Boston, 2920. 

The Interest of America in Sea Power. Boston, 2897. 

Lessons of the War with Spain. Boston, 2899. 

The Problem of Asia and its Effect upon International Polides. Boston, 290a 

Sea Power in its Relations to the War of 2822, in 2 v. Boston, 2905. 

Some Neglected Aspects of War. Boston, 1907. 



xxxvi LIST OF AUTHORITIES 

Maine, Sir Henry: International Law; a Series of Lectures. London, 1888 

(dted Maine). 2d ed., 1894. 
Ancient Law . . . with Introduction and Notes by Sir Fr. Pollock. London, 

1906. ist ed., in 1861. 

Early History of Institutions. 

Manceaux, £. : De la contrebande de guerre. Laval, 1899. 

Manche, L. : La declaration de guerre et Tavenir de Tarbitrage intemationaL 

Paris, 1909. 
Mandni, P. S. : Delia nazionalit4 come fondamento del dritto genti. Torino, 

1851. 
Manning, W. O. : Commentaries on the Law of Nations. New ed., by Amos. 

London, 1875 (dted Manning). 
Marquardsen, H. : Balmerincq in i Handbuch on Vdlkerrecht oder intemationales 

Recht. Freiburg, 1884 (dted Bulmerincq, in i Marquardsen). 
Marstrand-Mechlenburg, K. : Das japanische Prisenrecht. Berlin, 1908. 
Martens, Baron Ch. de : Manuel diplomatique. Paris, 1822. 
La guide diplomatique. 46 M., in 2 v. Paris and Leipzig, 185 1. 5e 6d., in 3 

v., par Geffcken. Leipzig, 1866. 
Martens (Baron Ch. de) et Cussy : Recudl manuel diplomatique et pratique de 

trait^, etc. Ldpzig, 1846. 

Causes calibres de droit des gens, in 2 v. Leipzig, 1827 (dted Causes ciUbres), 

Martens, F. de : Trait6 de droit international. Trad, du russe, in 3 v., par A. Leo. 

Paris, 1883-1887. 

La conference de la paiz k la Haye. Paris, 1900 (dted Martens, TraiU), 

La paix et la guerre. Paris, 1901. 

Par la justice vers la paiz. Paris, 1904. 

Martens, G. F. de: A Compendium of the Law of Nations. Trans, by Wm. 

Cobbett. Philadelphia, 1795. 
Prdds du droit des gens modeme de TEurope. 2e 6d. par Ch. Verg6, in 

3 V. Paris, 1864. 

Pr6ds, etc. With notes by Pinheiro-Fereira. Paris, 1831. 

Recueil des prindpaux trait^s d'alliance, etc. (1761-1801), in 7 v. Gdttingen, 

1791-1801. 

Supplement au recueil (1701-1801), in 4 v. G6ttingen, 1802-1808. 

Recueil des prindpaux trait6s (i 761-1808), in 8 v. GotUngen, 1817-1835. 

Nouveaux supplements au recueil des traitds, etc. (1761-1839), in 3 v. Gdt- 

tingen, 1839-1842. 
Nouveau recueil de trait6s d'alliance, etc. (1808-1839). 16 v. in 20. Gdttingen, 

181 7-1842. 
Nouveau recueil general de trait^s, etc. (i 840-1 875). 20 v. in 22. Gdttingen, 

1843-1875. 
Nouveau, recueil general de trait^s, etc. ; deux, s^rie, since 1876. Present 

editor, F. Stocrk (dted N. R. G.). 

Table gdn^rale du recueil des trait^s, in 2 v. Gdttingen, 187 5-1 876. 



Martin, X. : £tude sur le blocus maritime, 1909. 

Martini, A. : L'expulsion des Strangers. Paris, 1909. 

Martitz, F. von : Internationale Rechtshilfe in Stnifsachen, in 2 v. Ldpzig, 1888- 

1897. 
Maspero, G. C. Ch. : The Struggle of the Nations. London, 1896. 

Life in Andent Egypt and Assyria,. London, 1892. 

Mass^, G. : Le droit commerdal dans ses rapports avec le droit des gens et le droit 

civil. 36 6d., in 4 V. Paris, 1874. 



1 



LIST OF AUTHORITIES xxxvii 

Maulde La Qavite, M. A. R. de. : La dipbmatie au temps de Machiavel, in 3 v. 

Paris, z 892-1893. 
Maurel, M. : De la declaration de guerre. Paris, 1907. 
Maurice, J. F. : Hostilities without Declaration of War (i 700-1870). London, 

• 1883. 
MMdn, Paul : £tude sur radmission des Strangers en France. Paris, 1909. 
Meili, F. : Die drahtlose Telegraphie im intemen Recht und Vdlkerrecht. Zurich, 

1908. 

Die intemationalen Unionen. Leipzig, 1889. 

Das Luftschiff im intemen Recht und Vdlkerrecht. ZOrich, 1908. 

Das Staatsbankerott und die modeme Rechtswissenschaft. Berlin, 1895. 

Das Internationale Civil- und Handelsrecht, in 2 v. 

International Civil and Commercial Law. N. Y., 1905. 

Melik, £. : La mediation et les bons offices. Paris, 1900. 

Jf drignhac, A. : Trait6 de droit public international, in 2 v. to date. Paris, 1905- 

1907 (dted TraiU). 

Les lois et coutumes de la guerre sur terre. Paris, 1903. 

Trait6 thforique et pratique de Tarbitrage international. Paris, 1895 (cited 

Derofbitrage). 
Meuzer, Ch. : Die Haager Friedenskonferenz, in 2 v. Mttnchen, 1905-1907. 

Luftschiffahrtsrecht. Miinnchen, 1909. 

tJbersicht ttber die Arbdten der Haager Friedenskonferenz. Wtirzbuig, 

1903. 
Meurer, Julius : Der Russisch-Japanische Krieg. Halle, 1905. 
Meyer, A. : Die Erschliessung des Luf traumes in ihrem rechtlichen Fragen. Frank- 
fort, 1909. 

Die Luftschiffahrt in kriegrechtlicher Beleuchtung. Frankfort, 1909. 

Meyer, G. : Lehrbuch des deutschen Staatsrechtes. 4. Aufl. Leipzig, 1895. 

Die staatsrechtliche Stellung der deutschen Schutzgebiete. Leipzig, 1888. 

Staatsrechtliche Erortenmgen ttber die deutsche Reichsverfassuog. Leipzig, 

1872. 
Mezes, S. £. : Ethics, Descriptive and Explanatory, 1901. 
Milanovich, M. : Des trait6s de garantie en droit international. Paris, 1888. 
Miller, W. G. : The Philosophy of Law. London, 1884. 
Mills : The Law of Eminent Domain. 2d ed., 1888. 
Milman, H. H. : History of Latin Christianity, in 8 v. N. Y., 1881. 
Minor, R. C. : Conflict of Laws. Boston, 1901. 
Mirbach, W. von : Die v5lkerrechtlichen Grunds&tze des Durchsuchungsrechts zur 

See. Berlin, 1903. 
Mischef, P. : Le mer Noire et les d6troits de Constantinople. Paris, 1899. 
Moch, G. : Histoire sommaire de Tarbitrage permanent. Monaco, 1905. 
Mohl, R. von : Encyklopftdie der Staatswissenschaften. 2. Aufl. Freiburg, 1859. 

Geschichte und Literatur der Staatswissenschaften, 1885. 

Mommsen, Th. : Rdmisches Staatsrechts, in Marquart und Mommsen, Handbuch 

der rdmischen Alterthttmer, w. 1-3, 1887-1888. 
Monceaux, Paul : Les prox^nies Grecques, 1886. 

Monnet, R. : Manuel diplomatique et consulaire. Nouv. 6d. Paris, 1905. 
Montardy, H. de : Le traite et le droit international. Paris, 1899. 
Montesquieu, Ch. de. Baron : The Spirit of Laws. Trans, by Nugent. 7th ed., 

in 2 V. Edinburgh, 1778. New ed., Cincinnati, 1886. 
Moore, J. B. : A Digest of International Law, in 8 v. Washington, 1906 (cited 

Moore, Digest), 



xxxviii LIST OF AUTHORITIES 

Moore, J. B. : American Diplomacy. N. Y. and London, 1905. 

History and Digest of the International Arbitrations to which the Um'ted 

States has been a Party, in 6 v. Washington, 1898 (dted Moart^ Int. 

Arbitraiums), 

Report on Extraterritorial Crime and the Cutting Case. Washington, 1887. 

A Treatise on Extradition and Interstate Relations, in 2 v. Boston, 1891. 

American Notes to Dioey's Conflict of Laws. London, 1896. 

The Interoceanic Canal and the Hay-Pauncefote Treaty. Washington, 1900. 

Morgan : Ancient Society, 1877. 

Morley, John: Romanes Lecture on Machiavelli. London, 1897. See also 4 

Miscellanies, 1886-1908. 
Moser, J. J. : Versuch des neusten EuiopSischen Volkerrechts in Friedens und 

Kriegszeiten, in 10 v., 1777-1780. 
Mosley : What is Contraband and what is not, 1861. 
Mougins de Roquefort : La solution juridique des conflits intemationaux. Paris, 

1889. 
Moulin, H. A. : La doctrine de Drago. Paris, 1908. 
Moynier, G. : Essai sur les caractdres g£n£raux des lois de la guerre. Gendve, 

1895. 
Les bureaux intemationaux des unions universelles. Geneve, 1892. 

La fondation de la Croix rouge. Gendve, 1903. 

La r^sion de la Convention de Gendve. Gendve, 1898. 

fetude sur la convention de Geneve, 1876. 

Muirhead, James : Historical Introduction to the Private Law of Rome. Edin- 
burgh, 1886. 
Mttller : Entstehung^geschichte des Rotenkranzes, 1897. 

Mttller-Jochmus, J. : Geschichte des V5lkerrechts im AJterthum. Leipzig, 1848. 
Munro and Sellery : Mediseval Civilization. New enlarged ed. N. Y., 1907. 

Navigation Laws of the United States. Washington, 191 1. 

Neumann, L. Freiherr von : Grundriss- des heutigen europlLischen V5lkerrechts. 

3. Aufl. Wien, 1885. 
Elements du droit des gens moderne europden ; trad, par Riedmatten. Paris, 

1886. 
Neumeyer, K. : Gnmdlinien des intemationalen Vervaltungsrecht. Berlin, 191 1. 

Internationales Verwaltungsrecht, in sev. v. Miinchen and Berlin, 1910^. 

New York Times, the. 

Nichols : The Power of Eminent Domain, 1900. 

Niemeyer, T. : Das Seekriegsrecht nach des Londoner Deklaration von 26. Februar, 

1909. Berlin, 1910. 
Nineteenth Century, the. 
Nippold, O.: Die Fortbildung des Verfahrens in v(^errechtlicher Strdtigkeitea. 

Leipzig, 1907 (dted Nippold, Die Fortbildungy etc.). 

Der volkerrechtliche Vertrag. Bern, 1894. 

Die Zweite Haager Friedenskonferenz. I. Das Prozessrecht. Leipzig, 1908-. 

North American Review (cited No. Am. Rev.). 

Novicord, J. : La critique du Darwinism social. Paris, 1910. 

La fdd^ration de TEurope. Paris, 1901. 

Les luttes entre sod6t6s humaines et leurs phases successives. 3. 6d. Paris, 

1904. 

La politique intemationale. Paris, 1886. 

Nys, E. : Le droit international, in 3 v. Bruxelles, 1904-1906 (cited Nys). 



UST OF AUTHORITIES xxxix 

Nys, E.: Etudes de droit inteniatioDal public et de droit publique. 2 v. in i. 

Bnizelles, 1896-1901. 

Les origines de droit international. Paris, 1894. 

Le droit de la guerre et les precurseurs de Grotius, 1882. 

Notes sur lliistoire dogmatique et literaire de droit international en Angleterre, 

1888. 
Les theories politiques et le droit international ea France jusq'au XVIII 

sidde, 1899. 
Notes sur la neutrality, in 2 l^tudes. 



Odier, P. G. : Des privileges des agents diplomatiques. Paris, 1890. 

Olivart, Marquis d' : Bibliographie du droit international, in 4 v. 2. 6d. Paris, 

i905~X9io. 

Del recondmiento de bdligeranda, 1895. 

Le pape, les 6tats de T^glise et Tltalie, 1897. 

Ompteda : Literatur des V^errechts, 1785. 

Oppenheim, L. : International Law, in 2 v. London and N. Y., 1905-1906 (dted 

Oppenbeim). 

Die Jukunft des V(dkerrecbts. Ldpzig, 1911. 

International Incidents for Discussion in Conversation Classes. Cambridge, 

1909. 
Ortolan, Th. : R^es Internationales et diplomatie de la mer, in 2 v. 4e M. 

Paris, 1864 (dted Ortolan, Dip. de la mar). 
The History of Roman Law. Trans, by Prichard and Nasnuth. 2d ed. 

by Cutler. London, 1896. 
Owen, D. : Declaration oif War. London, 1889. 
Oxford Code or Manual of the Institute of International Law, in Scott, Texts of 

the Peace Conferences at The Hague, 389 ff. 
Ozanan, Ch. : La juridiction Internationale des prises maritime. Paris, 1910. 

Palmer, G. H. : The Field of Ethics. Boston and N. Y., 1902. 
Pardessus, I. M. : Us et couto'^mes de la mer, in 2 v. Paris, 1847. 
Parliamentary Papeis or Blue Books (dted Par. Blue Books). 
Passy, F. : Historique du mouvement de la paix. Paris, 1904. 

La paix et Tenselgnement padfiste. Paris, 1904. 

Paton, L. B. : The Early History of Palestine and Syria. N. Y., 1901. 

Paulsen, Fr. : A System of Ethics. Ed. and tr. by Thilly. N. Y., 1899. 

Paxson, F. L. : The Independence of the South American Republics. Philadelphia, 

1903. 
P£lissi£ du Rausas : Le regime des capitulations dans TEmpIre Ottoman, in 2 v., 

1902 and 1905. 
Penfield, F. C. : Present-day Egypt. N. Y., 1899. 
Penha, de la : La conmilssion Internationale d'enquite sur Tinddent Anglo-Russe 

de la Mer de Nord, 1905. 
Pensa, H. : La R^ubllque et le canal de Panama. Paris, 1906. 
Perdrix : Les cables sous-marines, 1902. 
Perels, F. : Manud de droit maritime international ; trad, par Arendt. Paris, 

1884. 

Das Internationale ofifentliche Seerecht im Gegenwart. Berlin, 1S82, 1903. 

Das allgemeine dffentUche Seerecht Im Deutschen Reiche. Berlin, 1901. 

Pctrie, W. M. F. : History of Egypt, in 6 v. N. Y., 1898-1905. 

Syria and Egypt from the Tell el Amama Letters. London, 1898. 



xl LIST OF AUTHORITIES 

Petin, H. : Les £tat8-Unis et la doctrine de Monroe. Paris, 1900. 

Pe}rToanard, J. : Des causes de la guerre. Montpeilier, 1901. 

Philit, £. : La guerre a&ienne. Paris, 19 10. 

Phillimore, Sir R. : Commentaries upon International Law, in 3 v. Philaddphia, 

1854-1857. 3d ed., in 4 V. London, 1879-1889 (dted Phillimore). 
Phillips, W. A. : Modem Europe, 181 5-1 899. 4tli ed. London, 1905. 
Phillipson, C. : The International Law and Custom of Ancient Greece and Rome, in 

a V. London, 191 1 (dted Phillipson). 

The Effect of War on Contracts. London, 1909. 

Two Studies in International Law. London, 1908. 

Pic, P. : La protection 16gale des travaiUeurs et le droit intematiooal ouvrier, 1909. 

Picdoni, C. V. E. : Essai sur la neutralit6 perp6tuelle. Paris, 1903. 

Pi^eliivre, R. : Pr6cis de droit international, in 2 v. Paris, 1894-1895 (dted 

Piidelidvre), 
Pierantoni: Die Fortschritte des Valkerrechts im XIX Jahrhundert. Obenetstvon 

Scholz, 1899. 
Pi6tri, F. : £tude critique sur la fiction d'exterritoriaiit6. Paris, 1895. 
Piggott, Sir F. T. : Exterritoriality. The Law relating to Consular Jurisdiction 

and to Residence in Oriental Countries. New ed., 1907. 

Extradition. Hongkong and London, 19 10. 

Nationality induding Naturalization and English Law on the High Seas 

and beyond the Realm, in 2 v. London, 1907 (dted Piggott). 
Pilidi, J. C. : Du combustible en temps de guerre, la houille, le petiole dans le droit 

de la neutrality maritime. Paris, 1909. 
POlaut, J. : Manud de droit consulaire. Paris, 1910. 
Pillet, A. : Les lois actudles de la guerre. 2e £d. Paris, 1901. 

Les fondateurs du droit international. Paris, 1904. 1 

. La cause de la paix et les deux conferences de La Haye. Paris, 1908. 1 

Pinheiro-Ferreira, S. : Cours de droit public interne et exteme. Paris, 1820-1838. 

Pistoye (A. de) et Duverdy (Ch.) : Traits des prises maritimes, in 2 v. Paris, | 

1859. ! 

Pittard : La protection des nationaux i T^tranger, 1896. 
Plutarch : Lives ; trans, called Dryden's ; ed. by A. H. Clought, in 3 v. BostoQv 

1881. 
Pohl, H. : Deutsche Prisengerichtsbarkeit. Tubingen, 191 1. 
Poinsard, L. : £tudes de droit international conventionnel. Paris, 1894. 

Les unions. 2d ed., 1901. 1 

Le droit international au XXe siMe, 1907. 1 

Pollock, Sir F. : Essays in Jurisprudence and Ethics. London, 1882. 

The Expansion of the Common Law. London, 1904. ' 

A First Book of Jurisprudence. London, 1896. j 

Notes to Maine's Andent Law. London, 1906. 

The Monroe Doctrine. Washington, 1904. 

Polybius: Histories; trans, by Schuckburgh. Ix>ndon, 1889. 

Pomeroy, J. N. : Lectures on International Law in Time of Peace. Ed. by Woolsey. 

Indianapolis, 1886 (dted Pomeroy). 
Pont, Ch. : Les requisitions militaires. Nancy, 1905. 
Pound, R. : Sociological Jurisprudence (in press). 
Pradier-Fod6r6, P. L. E. : Cours de droit diplomatique, in 2 v. 2e W. Paris, 

1881 (dted P.-Fod6r6, Cours). 
Trait6 de droit international public europ^en et am^ricain, in 8 v. Paris, 

1885-1906 (dted P.-Fodiri or P. Foder^, TraiU). 



LIST OF AUTHORITIES xli 

Pnulier-Fodirf, P. L. E.: Table g^n^rale analytique, par C. Prad2er-Fod6r6. 
Paris, 1906. 

Pratt, S. C. : Military Law, 1904. 

Preuss, H. : Das Vdlkerrccht im Dienste des Wirtschaftslebens. Berlin, 1891. 

Proceedings of American Conference on Arbitration. Washington, 1896 and 
1904. 

Proceedings of the American Political Science Association. 

Proceedings of International Cdnvention of Arbitration. Philadelphia, 1884. 

Proceedings of the National Arbitration and Peace Congresses of 1907 and 1909, in 
2 V. N. Y., 1907 and 1909. 

Proceedings of National Peace Congresses, since 1908. 

Proceedings of the Tribunal of Arbitration, in 15 v., 1895. 

Proceedings of the United States Naval Institute (see International Law Situ- 
ations). 

Proclamations and Decrees relating to the War with Spain. Washington, 1899. 

Proudhon, P. J. : La guerre et la paix, i860. 

Pufendorf , Samuel : Le droit de la nature et des gens ; trad, par Barbeyrac. Am* 
sterdam, 1706. 

Of the Law of Nature and Nations ; trans, into English by Kennett and others. 

Oxford, 1703. 

Pulszky : Theory of Law and Civil Society. London, 1888. 

Queneuill, H. : De la traite des noirs et Tesdavage. La confirenoe de Bruzelles et 

aes resultats. Paris, 1907. 
Quesada : Arbitration in Latin America, 1907. 

Ralston, J. H. : International Arbitral Law and Procedure. Boston and London, 

1910. 
Randolph, C. F. : The Law and Policy of Annexation. N. Y., 190X. 
Rattigan, Sir W. H. : Private International Law. London, 1895. 

The Science of Jurisprudence. London, 1899. 

Raynaud, B. : Droit international ouvrier. Paris, 1906. 

Rayneval, Gerard de : Institutions de droit de la nature et des gens, in 2 v. Paris, 

1811. 
Records of the Past, ed. by Birch. London, 1873-81. 

The same. A new series, ed. by Sayce. London, 1888-92. 

Reddaway, W. F. : The Monroe Doctrine. Cambridge, 1898. 

Regnault : Des effets de la neutralit6, 1898. 

Regnaut, H. : Des eflfets de la neutralit6 perp6tuelle en temps de paix. Paris, 

1898. 
Rehm, G. F. H. : AUgemeine Staatslehre, 1899. 

Geschichte der Staatsrechtswissenschaft. Freiburg, 1896. 

Reinsch, Paul S. : Public International Unions. Boston and London, 191 1. 

World Politics at the end of the Nineteenth Century. N. Y. and London, 

1900. 
R6my, A. : Th6orie de la continuity du voyage en matiire de blocus et de contre- 

bande de guerre. Paris, 1902. 
Renault, J. L. : £tudes sur les rapports intemationaux : la post et le t6l£graphie. 

Paris, 1877. 
Renault, Louis : L'ceuvre de la Haye, 1899 et 1907. Paris, 1908. 

Introduction k T^tude du droit international. Paris, 1869. 

Reports of American Bar Association. 



xlii LIST OF AUTHORITIES 

Report on Citizenship, etc., in 72 House Dociunents, No. 326, 59th Congress, 2d 
session, 1906-1907. 

Reports of Interparliamentary Union for Promotion of Intemati<mal Arbitration, 
since 1893. 

Reports of Lake Mohonk Conference on International Arbitration, since 1895. 

Report of London Naval Conference, in Higgins, The Hague Peace Conferences, 
pp. 567 ; and in International Law Situations for 1910. 

Report of Transvaal Concession Conmiission, April 19, 1901, Par. Blue Book, South 
Africa, June, 1901 (Cd. 623). 

Rettich, H. : Zur Theorie und Geschichte des RechU zum Kriege. Stuttgart, 1888. 

Revon, M. : L'arbitrage international. Paris, 1892. 

Revue de droit international et de legislation Gompar6e, since 1869 (dted R, D, /.). 

Revue de droit oubllc et de la science politique. 

Revue g6i6rale de droit international public, since 1894 (dted R. D. I. P.). 

Rey, F. : La protection diplomatique dans les 6chelles du Levant. Paris, 1899. 

La guerre russo-japonaise au point de vue de droit international, 1907-. 

Rhodes, J. F. : History of the United States, from the Compromise of 1850, in 5 v. 
N. Y., 1900. 

Richardson, J. D. : Messages and Papers of the Presidents of the United States, 
in 10 V. Washington, 1896. 

Riche, Ch. : Le pass^ de la guerre et Tavenir de la paiz. Paris, 1907. 

Ritchie, D. G. : Natural Rights. London and N. Y., 1895. 

Rivier, A. : Prindpes de droit des gens, in 2 v. Paris, 1896 (dted Rivier). 

Literar historische uebersicht, in i Holtzendorff, 1885. 

Note sur la lit^ratur du droit des gens. Bruxelles, 1883. 

Roby, H. J. : Roman Private Law in the Times of Cicero and of the Antonines. 
Cambridge, £ng., 1902. 

Rocholl, O. £. £. L. : Die Frage der Minen im Seekrieg vor ihrer Behandlung auf 
der n. Haager Konferenz. Boma, 1910. 

Rodrigues, J. C. : The Panama Canal. N. Y., 1885. 

Roepcke, W. : Das Seeheuterecht, 1904. 

Holland, L. : De la correspondance portale et t€16graphique dans les rdations Inter- 
nationales. Paris, 1901. 

Romanes, G. J. : Animal Intelligence. N. Y., 1883. 

Romberg, £. : Des belligdrants et des prisonniers de guerre. Bruzdles, 1894. 

Roper : Die Unterseekabel, 1910. 

De Roquette-Buisson : Du prindpe des nationalit6s, 1895. 

Rose, J. H. : The Revolutionary and Napoleonic £ra, 1789-1815. 2d ed. Cam- 
bridge, £ng., 1895. 

The Life of Napoleon I, in 2 v. N. Y., 1901-1902. 

Ross, £. A. : Sodal Control. N. Y., 1901. 

Rosse, £. : Du droit de la force. Guide international du commandant de bAtiment 
de guerre. Paris, 1891. 

Rouard de Card, £. : Etudes de droit international. Paris, 1890. 

Droit international. L'arbitrage international dans le pass6, le present et 

Tavenir. Paris, 1877. 

Le protectorat de la France sur le Maroc. Toulouse, 1905. 

Rougier, A. : Les guerres dviles et le droit des gens. Paris, 1903. 

Riimelin, G. : Politics and the Moral Law. Trans, by Tombo. N. Y. and Lon- 
don, 1901. 

Rutherford, Th. : Institutes of Natural Law. London, 1754. 2d Amer. ed., 
Baltimore, 1832. 



LIST OF AUTHORITIES xliii 

Sainte Croix, L. de : Le declaration de guerre et ses effets immMiats. Paris, 1892. 
Salidres, A. : La guerrei ses causes, ses resultats, ses lois, son histoire, etc. Paris, 

1879. 
Salkowsky, Carl: Institutes and History of Roman Private Law. Trans, by 

Whitefield. London, 1886. 
Salles : L'institution des consulats. Paris, 1898. 
Salmond, J. W. : Jurisprudence, 1902. 3d ed., 1910. 
Salomon, Ch. : L'occupation des territoires sans maltre. Paris, 1889. 
Savigny , Fr. Carl von : Traits de droit romain. Trad, de Tallemand par Ch. Guenoz, 

in 8v. Paris, 1840-185 1. 

Private International Law. Trans, by Guthrie, 2d ed. Edinburgh, 1880. 

System des heutigen rdmischen Rechts, in 9 v. Berlin, 1 840-1 851. 

Scala, R. von : Die Staatsvertr&ge des Altertums. Leipzig, 1898. 

Schlief, E. : Der Friede in Europa. Leipzig, 1893. 

Schmidt, B. : iTber die volkerrechtliche Clausula rdms sic stant^ms. Leipzig, 

1907. 
Schneeli, G. : Radiotelegraphie und Vdlkerrecht. Berlin, 1908. 
Schoemann, G. H. : Griechische Altertttmer, in 2 v. 4. Aufl. Berlin, 1902. 
Scholz, F. : Krieg und Seekabel. Berlin, 1904. 

Drahtlose Telegraphie und NeutralitHt. Berlin, 1905. 

Schopfer : Le principe juridique de la neutralit6 et son Evolution dans I'histoire de 

la guerre, 1894. 
Schroeder, F. : Der Luftflug, Geschichte und Recht. Berlin, 191 1. 
Schttdung, W. : Die Organization der Welt. Tubingen, 1908. 

Das Kfistenmeer im intemationalen Rechte. Gdttingen, 1897. 

Schuize, H. : Das Preussische Staatsrecht auf Grundlage des deutschen Staats- 

rechts, in 2 v. Leipzig, 1872, 1877. 
Schuyler, £. : American Diplomacy. N. Y., 1886. 
Schweitzer : Geschichte der schweizerischen Neutralit&t, 1 893-1 895. 
Scott, J. B. : Cases on International Law. Based on the late Dr. Freeman Snow's 

Cases and Opinions on International Law. Boston, 1906 (cited Scott, 

Cases), 

The Hague Peace Conferences of 1899 and 1907, in 2 v. Baltimore, 1909 

(cited Scott). 

American Addresses at the Second Hague Peace Conferences. Boston, 1910. 

Texts of the Peace Conference at The Hague. Boston and London, 1908. 

Scott, Lieut. Gen. W. : Memoirs, in 2 v. N. Y., 1864. 

Seeley, Sir J. R. : The Expansion of England. Boston, 1883. 

Seignobos, Ch. : Histoire politique de TEurope contemfwraine. Paris, 1897. 

same, in English. Ed. by S. M. Macvane. N. Y., 1899. 

Selden, John : Mare clausimi seu de dominio maris. Londini, 1635. Eng. trans., 

1663. 

De jure naturali et gentium juxta disdplinam HebraDorum. Londini, 1640. 

Selosse, R. : Trait6 de Tannexion au territoire et de son ddmembrement. Paris, 

1880. 
Seydel, Max von : Bayerisches Staatsrecht, in 4 v. Freiburg and Leipzig, 1896. 
Shepard, E. T. : The American Consular Service. Berkeley, Cal., 1901. 
Sherling : Die Bek&mfung von Sklavenhandel, 1897. 
Sibley (N. W.) and Elias (A.) : The Aliens Act and the Right of Asylum. London, 

1906. 
Sidgwick, H. : The Elements of Politics. London and N. Y., 1891. 
The Methods of Ethics. 4th ed. London, 1890. 



adiv UST OF AUTHORITIES 

Sieber, J. : Das StaatsbQrgerrecht im intemationalen Verkehr, in 3 v. Beni» 

1907. 
Sinnagieff : Des 6tats mi-souverains, 1889. 

Sloane, W. M. : Life of Napoleon Bonaparte, in 4 v. N. Y., 1896. 
Smith (F. £.) and Sibley (N. W.) : International Law as Interpreted during the 

Russo-Japanese War. Boston, 1905 (dted Smith and Sibley). 
Snow, Freeman : Cases and Opinions on International Law. Boston, 1893 (cited 

Snow, Cases). 
International Law; A Manual based upon Lectures delivered at the Naval 

War College. 2d ed. by Stockton, 1898 (dted Snow, Ini. Law). 
Treaties and Topics in American Diplomacy. Boston, 1893 (cited Snow, Am, 

Diplomacy). 
Sdderquist, N. : Le blocus maritime. Stockholm, 1908. 
Sohm, R. : The Institutes ; trans, by Ledlie. Oxford, 1904. 
Soldan : Extradition des criminels politiques. Paris, 1882. 
Soli^re, £. : Le plebiscite dans Tannexion. Paris, 1901. 
Sorel, A. : L'Europe et la revolution fran^ise. Paris, 1 893-1904. 
Spaight, J. M. : War Rights on Land. London, 191 1 (dted Spaight). 
Spear, S. T. : The Law of Extradition, International and Interstate. 3d ed. Al- 
bany, 1885. 
Staudacher, H. : Die Friedensblokade. Leipzig, 1909. 
Stein, L. von : Handbuch der Verwaltungslehre, in 2 v. 3d ed., 1888. 
Stengel, Karl von : Der ewige Friede. 3. Aufl. MUnchen, 1889. 

Weltstaat und Friedensproblem. Berlin, 1909. 

Stephen, J. K. : International Law and International Relations. London, 1884. 
Stephen, Sir J. F. : History of the Criminal Law of England, in 3 v. London, 

1883. 
Stephens, H. M. : Revolutionary Europe, 1 789-181 5. 6th ed. London, 1907. 
Stieglitz, A. de: fetude sur Textradition. Paris, 1883. 
. Stiel, Paul : Der Tatbestand der Piraterrie. Leipzig, 1905. 
Stockton, Admiral Ch. H. : The Laws and Usages of War at Sea. A Naval War 

Code. Washington, 1900. 

A Manual of International Law, 191 2. 

Stocquart, E. : Studies in Private International Law. Bruxclles, 1900. 
Stoerk, F. : Das Seegebiet, in 2 Holtzendorfif, 1887. 

Vdlkerrecht und Vdlkercourtesie. Tubingen, 1908. 

Stoika, M. N. : La question de I'arbitrage obligatoire aux conferences de la paix. 

Paris, 1909. 
Story, J. : Commentaries on the Constitution of the United States, in 2 v. 4th 

ed. by Cooley. Boston, 1873. 

Commentaries on the Conflict of Laws. 8th ed. by Bigelow. Boston, 1883. 

Notes on the Prindples and Practice of Prize Courts. Ed. by Pratt. London, 

1854. 
Stowell, E. C. : Consular Cases and Opinions. Washington, 1909. 

Le consul. Paris, 1909. 

Strabo: The Geography of Strabo. Tr. by Hamilton and Falconer, in 3 v. 

London, 1887-1889. 
Stubbs, C. : Suzerainty. London, 1882. 
Suarez, F. de P. : Tractatus de legibus, 161 2. 

Tableau d^cennal de Torganization, du {personnel et des travaux de ilnstitut de 
droit international, 1894-1904. &d. par Descamps. Paris, 1905. 



LIST OF AUTHORITIES xlv 

Tableau g£n6ral de rorganization, des travaux et du personnel de ITnsUtut de droit 
international^ 1873-1892. £d. par Lehr. Paris, 1893 (cited Tableau), 

Takahashi, S. : Cases on International Law during the Chino- Japanese War. Cam- 
bridge [£ng.]| 1899 (dted Takahashi, Cases), 

International Law Applied to the Russo-Japanese War. Am. ed. N. Y., 1908 

(cited Takahashi). 

Tarde, G. : Les lois de Timitation. 2e 6d. Paris, 1895. 

The same. Trans, by Mrs. Parsons. N. Y., 1903. 

Tarring : British Consular Jurisdiction in the East, 1887. 

Taylor, H. O. : Medieval Mind, in 2 v. London, 191 1. 

Taylor, Hannis : A Treatise on International Public Law. Chicago, 2901 (dted 
Taylor). 

Tchemoff, J. : Le droit de protection exerc6 par un £tat k Tdgard de ses nationaux 
residant i T^tranger. Paris, 1898. 

Testa, C. : Le droit public international maritime. Trad, du Portugais par Bou- 
tiron. Paris, 1886. 

Thomas, Henri : Des requisitions militaires et des logements des gens de guerre in 
France. Paris, 1889. 

Thomasius : Fundamenta juris naturae et gentium, 1705. 

Thonier, A. : De la notion de contrebande de guerre. Bordeaux, 1904. 

Thucydides : History of the Peloponnesian War. Trans, by Crawley. London, 

1874. 
The same. Tr. by W. Smith, 1855. 

Toll, B., Baron von : Die intemationalen Bureaux der allgemeine vdlkerrechtlichen 
Verwaltungsvereine. Tubingen, 1910. 

Topinard, Paul : Sdence and Faith. Tr. by T. J. McCormick. Chicago, 1889. 

Translations and Reprints from the Original Sources of European History by the 
University of Pennsylvania, in 9 v. Philadelphia, 1895-1907. 

Treaties, Compilation of, in Force : By H. L. Bryan. Washington, 1899. Rev. 
ed. by W. M. Malloy, 1904 (Senate Doc., No. 318). 

Treaties and Conventions concluded between the United States and other Powers, 
since July 4, 1776. Washington, 1871. 

The same, 1889. 

Treaties concluded by the United States of America with Foreign Nations and In- 
dian Tribes. Ed. by Sanger. Boston, 1858. 

The same, 1869. 

Treaties, Conventions, International Acts, Protocob and Agreements between the 
United States of America and other Powers (i 776-1909). Washington, 
1910. 

Treaty, Laws, and Regulations governing the Admission of the Chinese. Wash- 
ington, 1909. 

Treitschke, H. G. von : Politik, in 2 v. Ldpzig, 1897-1898. 

Triepel, H. : Die neusten Fortschritte auf dem Gebiete des Kriegsrechts. Leipzig, 

r894. 

Vdlkerrecht und Landesrecht. Leipzig, 1899. 

Tswettcoff : De la situation juridique des 6tats neutralist, 1895. 

Trueblood, B. F. : The Federation of the World. Boston and N. Y., 1899. 

Tucker, G. E. : The Monroe Doctrine. Boston, 1885. 

Tupper, C. L. : Our Indian Protectorate. London, 1893. 

Twiss, Sir Travers : Law of Nations considered as Independent Political Conununi- 

ties. The Rights and Duties of Nations in Time of Peace. New ed., Oxford, 

1884 (dted I Twiss or Twiss^ Peace). 



xlvi LIST OF AUTHORITIES 

Twias, Sir Travers: The same. The Rights and Duties of Nations in Time 
of War. ad ed. Oxford, 1875 (dted 2 Twiss or Twiss, War). 

— The Oregon Question examined. London, 1846. 

— Belligerent Rights on the High Seas, since the Declaration of Paris, 1856. 
London, 1884. 

Monumenta juridica, the Black Book of the Admiralty, in 4 v. London, 

of 1871-1876. 

Ullmann, E. : VOlkerrecht. 2d ed. Tubingen, 1908 (cited Ullmann). 

United States Naval War College, Discussions of : International Law Situations 

(since 1900). Washington, 1901-1912 (cited IrU. Law SUuaiums), 
Upton, F. H. : The Law of Nations a£fecting Commerce during War. N. Y., 1863. 

Valin, R. }. : Commentaire sur Tordonnance de la marine de 1681. Paris, 1836. 

Traits des prises. Rochelle et Paris, 1782. 

Van Dyne, Fr. : Our Foreign Service; the ''ABC of American Diplomacy. 

Rochester, N. Y., 1909. 

Citizenship of the United States. Rochester, N. Y., 1904. 

A Treatise on the Law of Naturalization of the United States. Washington, 

1907. 
Van Overbergh, C. : L'association intemationale. Bruxelles, 1907. 
Vassaux, £. : Droit des gens, prisonniers de guerre et otages. Paris, 1892. 
Vattel, E. de : Le droit des gens ; ou, prindpes de la loi naturelle appliqu^ i la 

conduite et aux aflfaires des nations et souverains. Nouvelle M. par Pradier- 

Fod^r^, in 3 v. Paris, 1863. 
The Law of Nations. Northampton, Mass., 1820 ; Philadelphia, 1859 (dted 

Vattel). 
Vercamer, £. : Des franchises diplomatiques et sp6cialement de rexterritorialit6. 

Paris, 1 89 1. 
Vercken, H. : De Tassistance hostile dans la guerre maritime. Paris, 191 2. 
Vergnes : La condition international de la papaut^, 1905. 
Verraes, F. : Droit international. Les lois de la guerre et la neutralit6, in 2 v. 

Bruxelles, 1906 (cited Verraes); 
Vetzel, L. : De la contrebande de guerre. Bordeaux, 1904. 
Viallate, A. : Essais d'histoire diplomatique am6ricaine. Paris, 1905. 

La vie fwlitique dans les deux modes (since 1906). Paris, 1906-1912. 

Vigi6re, C. : La juridiction des prises maritimes. Lyon, 1901. 
Vivot, A. : La doctrina Drago. Buenos Aires, 1910. 
Voigt, M. : Rdmische Rechtsgeschichte. Leipzig, 1892. 

Jus Naturale und Jus Gentium der Romer, in 4 v. Ldpzig, 1865-1876. 

Vossen : Der Konterbande des Kriegos, 1896. 

Wagner, P. : Zur Lehre von den Streiterledigungesmitteln des V5lkerrechts. Darm- 
stadt, 1900. 

Walker, T. A. : A Manual of Public International Law. Cambridge, Eng., 1895 
(dted Walker, Manual). 

The Science of International Law. London, 1893 (dted Walker, Science). 

A History of the Law of Nations. Cambridge, 1899 (dted Walker, History), 

Walpole, Sir Spencer: Foreign Relations, in English Citizen series. London, 
1882. 

Ward, Robert : Enquiry into the Foundation and History ot the Law of Nations in 
Europe, in 2 v. London, 1795. 



LIST OF AUTHORITIES xlvii 

Webster, P. : Law of Naturalization in tj^e Unjled States of America and of other 

countries. Boston, 1895. 
Wegeman : Die Ratification von Staats^erijll^e, 1892. 
Wehberg, Hans : Das Beuterecht in Lcmd iind Seekriege. Ttibingen, 1909. 

Capture in War on Land and Sea ^^}/tsLD8, by Robertson. London, 191 z. 

Weiss, A. : Manuel de droit international priv6. 6. €d. Paris, 1909 (dted Weiss, 

Manuel), 
Traits thdorique et pratique de droit international priv6, in 5 v. Paris, 

1898-1908 (cited Weiss, TraiU). 
Welwod, Wm. : De dominio maris, 161 5. 

Westerkamp, J. B. : Staatenbund und Bundesstaat. Leipzig, 1892. 
Westermarck, £. A. : The Origin and Development of Moral Ideas, in 2 v. Lon- 
don and N. Y., 1906-1908. 
Westlake, John: International Law. Peace. Cambridge, Eng., 1904 (cited i 

Westlake). 

War, 1906 (dted 2 Westlake). 

Chapters on the Prindples of International Law. Cambridge, 1894 (cited 

Westlake, Chapters). 

A Ti'eatise on Private International Law. 4th ed. London, 1905. 

Wharton, Fr. : Cdmmentaries on Law. Philadelphia, 1884. 

A Digest of the International Law of the United States, in 3 v. Washington, 

1886 (dted Wharton, Digest)' 

A Treatise on the Conflict of Laws, in 2 v. 3d ed. Rochester, N. Y., 1905. 

Exterritoriality. Washington, 1882. 

Wheaton, Henry : Elements of International Law. 2d ed., with notes, by W. B. 

Lawrence, Boston, 1863 ; 8th ed., ed. with notes, by R. H. Dana, Jr., Boston, 

x866 (dted Wheaton or Dana's Wkeaion), 
The same. 4th English ed. by J. B. Atlay. London, 1904 (cited Wheaton 

or Atlay 's Wheaton). 
History of the Law of Nations in Europe and America from the Earliest Times 

to the Treaty of Washington, 1842. N. Y., 1845 (dted Wheaton, History), 

Histoire des progrds du droit des gens en Europe. 4. M., 1865. 



Whewdl, W. : Tlie Elements of Morality induding Polity, in 2 v. London, 

1845. 

(see Grotius). 

Whitcomb, A. : La situation international de Cuba, Paris, 1905. 

White, Andrew : Seven Great Statesmen in the Warfare of Humanity with Unreason. 

N. Y., 1910. 
Whittuck, E. A. : International Documents. London, N. Y., etc., 1908 (cited 

Whittuck, Int, Doc). 
Wicquefort, A. van : The Ambassador and his Functions. Trans, by Digby. 2d 

ed. London, 1740. 
Wiegener, M. : Die Kriegskonterbande. Berlin, 1904. 
Wiesse, Carlos : Le droit international appliqu^ aux guerres dviles. Lausanne, 

1898. 
Wildman, R. : Institutes of International Law. 2v. in i. Philadelphia, 1850. 
Wilbughby, W. W. : The Constitutional Law of the United States, in 2 v. N. Y., 

1910. 

The Nature of the State. N. Y. and London, 1896. 

Political Theories of the Ancient World. 

Wilson, G. G. : Handbook of International Law. St. Paul, Minn., 1910 (cited 

Wilson). 



xlviii LIST OF AUTHORITIES 

Wilson, G. G. : Insurgency Lectures delivered at the Naval War College, 

Newport, R. I. Washington, 1900. 
• Submarine Telegraphic Cables in their International Relations. Lectures, 

etc. Washington, 1901. 
^— International Law Situations, since ab. 1900. 
Wilson (G. G.) and Tucker (G. F.) : IntematioDal Law. 5th ed. N. Y., Boston, 

etc, 1910. 
Wilson, Woodrow : The SUte. Boston, 1889. 
Wolfif, Ch. von : Jus Gentium, 1749. 
"— Jus Naturae, in 8 pts., 1 740-1748. 

Institutiones Juris Naturae et Gentium. Abridged, 1763. 

Woolsey, T. S. : America's Foreign Policy. N. Y., 1898. 

Woolsey, Th. D. : Introduction to the Study of International Law. 6th ed. by 

T. S. Woolsey. N. Y., 1899. 
Wuarin, £. : Essai sur les emprunts d'^tats. Paris, 1907. 
Wundt, W. M. : Ethics, in 3 v. Trans, by Titchener, etc. London, 1897-190X. 

Xenophon, Cyropflsdia and The HeUenics; tr. by Watson and Dale. London, 
1891. 

Yale Law Journal. 

Zaleski : Die VOlker-Bedeutung der Kongresse, 1874. 

Zeitschrift fttr V5lkerrecht und Bundesstaatsrecht, since 1907 (died ZeUsckrifi), 

Zom, A. : GrttndzUge des Vdlkerrechts. 2. Aufl. Leipzig, 1903. 

Das Kriegsrecht zu Lande. Berlin, 1906. 

Zom, P. : Die Fortschritte des Seekriegsrechtes durch die 2. Haager Friedens- 

konferenz. Tubingen, 1908. 

Das Staatsrecht des deutschen Reiches. Berlin and Leipzig, 1880. 

Zouche, Richard : Juris et judidi fedalis, etc. Ed. by T. E. Holland, in 2 v. for 

the Classics of International Law, ed. by J. B. Scott. Washington (Carnegie 

Institution), 19x1. 



THE ESSENTIALS OF 
INTERNATIONAL PUBLIC LAW 



ESSENTIALS OF INTERNATIONAL 

PUBLIC LAW 

INTRODUCTION 
CHAPTER I 

THB KATURS OF INTERNATIOIIAL LAW 



I. Deflnitioii of International Law. — IfUemaUanal Law^ 
or the Common and Conventional Law of Nations, is that body 
of principles, rules, and customs which are binding upon the 
members of the International Community of States in their 
relations with one another or with the nationals of other States.^ 

* For various definitions of International Law, see * x Calvo, { i ; iF.de 
Martens, TraiUy S 3 ; * i Pradier-FodM, TraiU^ \ x ; and Ullmann (2d ed.)> 9~io n. 
Halleck (Baker's 3d ed., I, 46) simply defines International Law as ''the rules of 
conduct regulating the intercourse of States.*' This definition has the great merit 
of simplicity, but is too inclusive. There are "rules regulating the intercourse of 
States" which are not, properly speaking, a part of the Law of Nations. Inter- 
national Law is generally and habitually, though not always, observed; but in 
this respect it does not differ from municipal or State law, the rules of which are 
also frequently violated. 

Certain authorities {e.g, Liszt, 3d ed., { a, p. 13) distinguish between general 
(aUgemeines) and particular International Law. But rules which are not generally 
or universally recognized as binding can scarcely be said to deserve the name Inter- 
national Law at all. Oppenheim (I, p. 3) distinguishes between universal in contra- 
distinction to particular and general International Law. So many divisions are 
confusing and uxmecessary. According to some authorities (e,g. Despagnet^ No. 41 ; 
and I Pradier-Fod6r6, No. 6), the Law of Nations includes a theoretical or ideal, and 
a real or actual International Law. They explain that the latter tells us what the 
law if, and the former what it should be. This distinction b undoubtedly a sound 
one, but this volume deals mainly with positive or real International Law. 

Some writers (e.g, Heffter, i i ; and Holtzendorff, in i Bandbuch^ SS3-4) speak of 
a European International Law. While it may be readily admitted that the Grotian 
system is essentially of European origin, the application and development of the 
Law of Neutrality is largely due to American statesmen and publicists. The South 
American publicist Alvarez (14 R, G. D. /., 1907, 393-405, and 3 A, /., X909, 269- 
353) even q>eaks of an American International Law. Such terms are too narrow, 
and their use tends to interfere with a broad conception of international relations. 

B I 



2 ESSENTIALS OF INTERNATIONAL PUBUC LAW 

2. The Term International Law. — The term ''International 
Law " ' appears to have been coined by Jeremy Bentham in 
1780 and is the one generally in use at the present time, although 
the phrase " Law of Nations " (a translation of Droit desGens — 
the title of Vattel's famous work published in 1758) is still 
sometimes employed. 

The former term is preferable to the latter, inasmuch as Droit 
des Gens is a translation of the Latin jus gentium^ — a phrase 
which bore a very different meaning from that of "Inter- 
national Law." Grotius' great work, published in 1625, was 
entitled De Jure Belli ac Pacts. Early English writers employed 
the term " Civil Law," — a phrase still used by Locke toward 
the close of the seventeenth century. 

3. Necessary Distinctions. — International public Law 
should be carefully distinguished from International Ethics or 
Morality, International Comity or the Comity of Nations, 
International Policy or Diplomacy, International Private Law or 
Conflict of Laws, and International Administrative Law. 

4. International Ethics. — International Morality deals with 
the principles which should govern international relations from the 
higher standpoint of conscience, justice, or humanity. Without 
certain standards of international morality. International Law 
could not exist, and many of its principles (as, e,g. respect for 
treaties) are conditions essential to friendly and stable inter- 
national intercourse. Although the Law of Nations is based 
largely upon a sense of justice and equity among men, inter- 
national morality is by no means identical with International 
Law ; * for the latter fails to condemn certain practices and prin- 

« The term "Interstate Law" would be somewhat more exact than "Inter- 
national Law," which is a translation of the phrase jus inter genteSj used by Zouche 
as a part of the title of his manual published in 1650 (republished by the 
Carnegie Institution in 191 1 as Vols. I and II of the Classics of Int. Law.) On the 
terminology of our subject, see especially Bonfils (Fauchille) , N0.3 ; •Creasy,pp.3 ff . ; 
Despagnet, No. 37; Holland, Jurisprudence (loth ed.), 380 n. ; • Holtzendorflf , in 
I Handbuch, § 2; Lawrence, Principles (4th ed.), §7; Liszt (3d ed.), 1-2; *i 
Pradier-Fod^ri, No. 3 ; i Rivier, 4-6 ; Ullmann, 5 3 ; i Walker, History, § i ; 
Wheaton, §12. » See infra, f 38. 

< As Pollock (First Book of Jurisprudence, p. 44) justly observes: "Though 
much ground is common to both, the subject matter of Law and Ethics is not the 
same. The field of legal rules of conduct does not coincide with that of moral rules, 
and is not included in it ; and the purposes for which they exist are distinct." 



THE NATURE OF INTERNATIONAL LAW 3 

dples (as, e.g. the right of conquest) which are clearly at vari- 
ance with ideals of justice and humanity, and it includes many 
rules which originated in interest and convenience rather than 
in morality.* 

5. The Comity of Nations. — Iniemational ComUy relates 
to those rules of courtesy, etiquette, or good will which are or 
should be observed by Governments in their dealings with one 
another on grounds of convenience, honor, or reciprocity. Such, 
for example, are the extradition of criminals in the absence of 
express agreement ; the observance of certain diplomatic forms 
and ceremonies ; and the faith or credit given in each State to the 
public acts, records, and judicial proceedings of other States.* 

6. International Policy or Diplomacy. — ItUemaUanal Policy 
or Diplomacy in the wider sense ' relates to objects of national 
or international policy and the conduct of foreign affairs or 
international relations. It is generally based upon considera- 
tions of expediency or national interest rather than upon those 
of courtesy, humanity, or justice. Though its aims and methods 
should never be illegal or immoral, it must be admitted that 
its conduct in times past has generally been Machiavellian in« 

*Ha]l (6th ed., i flf.) wisely makes the ''existence of rules of positive Inter- 
national Law the sole standard of conduct or law." He argues: (i) that ''it is 
not agreed in what the absolute standard consists" ; and (2) that "even if a theory 
of absolute right were universally accepted, the measure of the obligations of a State 
would not be found in its dictates, but in the rules which are received as positive law 
by the body of States." But he also "unhesitatingly " affirms that "essential facts 
of State existence and moral obligations which are recognized as being the source of 
legal rules possess a much higher authority than any other part of International 
Law." 

• Comity is the "recognition which one nation allows within its territory to the 
legislative, executive, or judicial acts of another nation." Justice Gray, m HUUm 
V. Guyot (1894), IS9 U.S. Rq>. 113, 164. But this definition is too narrow. 

For examples of requests for the extradition of criminals on grounds of cour- 
tesy, see 4 Moore, Digest, \ 582. 

' "Diplomacy in the narrower sense may be defined as the art of conducting 
the intercourse of nations with one another." Foster, American Diplomacy, p. 2. 
Twiss (ly p. 163) points out that it is a science as well as an art. He defines 
diplomacy as "the sdence which is conversant with Negotiations and Treaties.'' 
In the wider sense, "a history of diplomacy properly includes not only an account 
of the progress of international intercourse, but an exposition of the motives by 
which it has been inspired and the results which it has accomplished." See 
preface to the first volume of HOl's monumental work, The History of European 
Diplomacy. ^ 



4 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

stead of Grotian. While there has undoubtedly been great im« 
provement in standards of diplomatic conduct, e^>eciaUy since 
the close of the Napoleonic wars, the fact has not been suffi- 
ciently recognized, at least by publicists, that beyond the well- 
cultivated field of International Law there still lie vast and 
but partially unexplored regions of policy where motives of in- 
terest and expediency prevail rather than ideals of law and 
justice. The aims and methods wluch govern international re- 
lations in these fields of policy or diplomacy may and should 
be in harmony with established laws and customs, but are often 
independent of, and sometimes even antagonistic to, recognized 
rules and principles. At any rate, statesmen exercise a wider 
discretion and feel less bound by legal checks and moral stand- 
ards in the realm of International Policy or Diplomacy than 
within the narrower field bounded by definite rules of positive 
International Law. The abuse of this freedom frequently leads 
to intervention and war.* 

7. International Private Law or Conflict of Laws. — Inier- 
national Private Law^ or Conflict of Laws is that body of rules 
or principles which decide between two conflicting systems of 
law in the decision of cases affecting private rights. It is not 
a part of International Law proper, and appears to owe its origin 
to a feeling of comity ^® rather than to a sense of justice, although 
it now rests upon a more positive basis. " It derives its force 
from the sovereignty of the States administering it; it affects 
only the relations of individuals as such ; and it consists in the 
rules by which courts determine within what national jurisdic- 
tion a case equitably falls, or by what national force it is just 
that it shall be decided." " It relates especially to such mat- 

*Nys (Le droit itU.y I, p. 204) quotes von Holtzendorff as saying that "inter- 
nationkl politics is the use of an international force acting in the interest of the 
community." He (Holtzendorff) dtes the following discriminating words of Bul- 
merincq : ** Law leaves no choice ; fwlicy keeps open various means to an end and 
permits a free choice in respect to these.'' (See Bulmerincq, in Marquardsen's 
Handbucky I, § 3.) For a discussion of this subject from an ideal standpoint, see 
Novicow, La politique int, (1886). 

* The term International Private Law seems more exact than Private Interna- 
tional Law — the phrase usually employed. Conflict of Laws is perhaps preferable 
to either. 

*® See Hilton v. Guyot, 159 U.S. 113, 164-165; and Story, Conflict of Laws, Xos 
28, 33-S^' " HaU (6th ed.), p. 51. 



THE NATURE OF INTERNATIONAL LAW 5 

ters as limits of national jurisdiction ; validity of foreign mar'* 
riages, wills, and contracts ; and questions of residence, domicile, 
and nationality. It is a part of the mxmicipal law in each State 
and of the conmion law in England and the United States.^ 

8. International Administrative Law. — International Ad- 
ministrative Law — a branch of international jurisprudence which 
is still in its infancy — has been tentatively defined as '^ that 
body of laws and regulations created by the action of Interna- 
tional Conferences or Commissions which regulate the relations 
and activities of national and international agencies with respect 
to these material and intellectual interests which have received 
an authoritative universal organization."^ It relates to such 
matters as international commxmication by means of postal 
correspondence and telegraphy, international transportation, 
copyright, crime (e.g. the white slave traffic), sanitation, etc. It 
is created by International Congresses or Conferences, and Com- 
missions, and is administered by International Commissions and 
Bureaus as. well as by national agencies. 

9. Is International Law a Branch of True Law? — The claim 
of International Law to be considered a branch of true, law or 
jiirisprudence proper has been often denied, more especially by 
that English school of analytic and positive jurisprudence founded 
by Bentham and Austin. The Austinian or imperative view of 
law, which has also foimd some support on the Continent, seems 
to-day to be rejected by an overwhelming weight of authority, 
except possibly in England and the United States.^^ 

The objections to considering International Law as a branch 
of true law fall under three main heads. It is maintained that 
the Law of Nations lacks : (i) The quaUty of positive author- 
ity or command. It does not conform to Austin's definition of 
law as '' a rule laid down for the guidance of an intelligent being 



" Wharton, Conflict of Laws, I, § z. Minor (Conflict of Laws, § 2) thus distin- 
guishes International Private Law from International Public Law : (i) as to per- 
sons on whom it operates, i.e. on private persons ; (2) as to transactions to which 
it relates, i.e. to private interests ; (3) as to remedies applied, i.e. these are applied 
by courts or tribunals. In the United States, the States are regarded as sovereign 
from the standpoint of Conflict of Laws. 

'* Reinsch, ia $ A. J. (1909), 5. 

^ For lists of authorities for and against the Austinian or imperative view of 
law, see bibliography at the end of this chapter. 



6 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

by an intelligent being having power over him." ^ In other 
words, it is not the general command of a determinate legislator 
or legislative body with power to enforce its decisions. (2) There 
is no legal duty or obligation of obedience on the part of those 
to whom it is addressed, for there are no courts or judicial tri- 
bunals to interpret and enforce this so-called law. (3) There is 
no penalty prescribed for disobedience. Consequently, it lacks 
sanction or physical power to enforce obedience. The so-called 
Law of Nations is, it is claimed, a branch of ethics rather than of 
jurisprudence.^ 

It is now generaUy agreed that the Austinian view of law is 
formal, narrow, strbitrary, imhistorical, and unphilological.^^ 
While it may still have some value for those who practice and 
administer law in the courts, it does not even furnish a complete 
definition of municipal law, as many laws are permissive rather 
than mandatory in their character. It leaves out of account 
that large and important part of constitutional law which is 
based upon usage or convention and is not directly administered 
by judicial tribunals. 

The researches inaugurated by Sir Henry Maine and Savigny, 
the foimders of the modem school of historical jurisprudence, 
have shown that custom is anterior to enacted law, of which in- 
deed it remains the essence even after it has become incorporated 
into .codes and statutes and interpreted by the courts. Even 
Holland admits that judges do not transform custom into law, 
for they apply it " retrospectively " as well as " prospectively." 
They merely place upon it " the stamp of judicial authentica- 
tion." « 

Leading authorities even maintain that physical sanction or 
the threat of physical force is a mere accident and is not an 
essential characteristic of law. It is but a means to an end — 
a part of the machinery of society for the enforcement of law. 

" Cf. Holland's definition of law as " a general rule of external human action 
enforced by a sovereign political authority," in Jurisprudence (loth ed.), 40. 

" In this paragraph I have sought rather to summarize the objections gener- 
ally made to the legal nature of International Law than to state the specific 
objections of Austin. 

" This last point has been elaborated by Clark, in his Practical Jurisprudence, 
Pt. I, chs. 2-7. For a summary of the philological argument, see Walker, Science 
of International Law^ 21 ff. 

^" Holland, op. cit.j p. 58. 



THE NATURE OF INTERNATIONAL LAW 7 

Far more important than the infliction, of punishment is the 
creation of a law-abiding sentiment among the i)eople." Besides, 
the laws to which the severest penalties are attached are not 
always those most generally or scrupulously obeyed.*' 

Law in jurisprudence b essentially a body of customs, prin- 
ciples, or rules for the regulation of the external conduct of human 
beings in their relations with one another as members of a politi- 
cal conmixmity.*^ In order fully to answer the description of 
law, these rules must be generaUy recognized as binding and 
enforceable by external power or appropriate sanction, but they 
are not necessarily accompanied by the threat or use of physical 
force in case of their violation. The guarantees or sanctions 
securing their observance need not be based upon the assertion 
of force or the danger of speedy and definite punishment. The 
guarantees for International Law, and still more for the customs 
and conventions of constitutional law, are mainly of a moral 
nature ; and these rest upon public opinion and law-abiding habits 
on the part of the people for their observance." Besides, we 
cannot admit that International Law lacks altogether a deter- 
minate lawgiver and sovereign authority.** European Con- 

" This is a summary of Walker's argument. See op. cit.^ pp. 29 ff. 

* From the point of view of general recognition and habitual obedience, Inter- 
national Law certainly compares favorably with municipal or State law. For ex- 
ample, treaties are, as a rule, faithfully executed, and arbitral decisions are nearly 
always carried out. The rules of warfare have been generally observed during 
recent wars between civilized States. Even in violating the Law of Nations, 
modem governments usually render to it the homage of pretended obedience. 

" Cf. the definitions of Oppenheira, I. § 5, and Clark, p. 134. For numerous 
definitions of law, see Clark, chs. 4-14, and Holland (loth ed.), pp. 41-43. 

Pollock {First Book, tic.,p. 28) justly observes that "the only essential conditions 
for the existence of law and legal institutions are existence of a political community 
and the recognition by its members of settled rules binding upon them in that capac- 
ity." But he had previously observed (p. 22) that " the appointed consequences of 
disobedience, the sanctions of law as they are commonly called, seem to be not only 
a normal element of civilized law, but a necessary constituent." 

** On this point, see especially the profotmd observations of the eminent German 
publicist Jeliinek, in his Recht des modernen Stiiats (2d ed., 1905), 325 ff., and his 
StaaUnvertrdge, 37 ff- 

" Creasy {First Steps, etc., p. 70) observes on this head : " Although Sovereign 
States acknowledge no common Superior Lawgiver from which they collectively 
receive imperative Law, jret they can and do make up a community capable of 
establishing Laws which shall be binding on each member of the community. In 
this sense the community at large is a sovereign Lawgiver to each member of the 
community." So far he seems sound, subject to the reservation that each member 



8 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

gresses, like those of Paris in 1856 and the recent Hague Confer- 
ences, exercised virtual legislative powers and issued commands 
which have been recognized as binding and are generally obeyed. 
The tliirteen Conventions of the Second Hague Peace Conference 
of 1907 (compared with the three Conventions of the Con- 
ference of 1899) bear witness to the increasing activity and im- 
portance of international legislation. True it is that these Con- 
ventions bear the form of treaties which each State may refuse 
to sign and ratify, but they are none the less in essence acts of 
international legislation.^ 

Nor is International Law wholly without judicial sanction. 
It is frequently administered and interpreted by judicial tribunals, 
more particularly by courts of arbitration and national prize 
courts. The Hague Conference of 1907 even provided for the 
creation of an International Prize Court which, in the absence of 
conventions or national legislation, shall apply the rules of Inter- 
national Law.^ 

If physical sanction or the threat or guarantee of physical 
force is an essential characteristic of law, then it must indeed be 
admitted that International Law is a law of imperfect obligation. 
But it has been shown that such is by no means the case. It is 
impossible to agree with those authorities * who hold that war 

of the community can withhold its assent to these laws. But when he makes sanc- 
tion for this law consist in war or physical force in pro^>ective, we decline to follow 
him. 

** This is not merely the author's opinion ; it is that of eminent jurists like Jd- 
linek, who sajrs: "Such agreements (Vereinbarungen) are not in essence treaties. 
They create no jus intra partes y but 2ijus supra partes y i.e. they give expression to a 
common juristic conviction ; they are not two-sided legal creations, but oonmion 
irrevocable declarations " (Offentliches Rechty 299). 

^ Title I, Art. 7, of the " Convention for the Establishment of an International 
Prize Court." It was further provided : "// generally recognized rules da not exist, 
the Court shall decide in accordance with the general principles of justice and equity." 
The Court is thus expressly authorized to create International Law in such a con- 
tingency. 

■• For example, Bltmtschli, Introduction, p. 8 ; Creasy, § 78 ; Holland, Juris- 
prudence^ (loth ed.) 391-393; Saknond, Jurisprudence, 14 ; i Twiss, pp. vii-ix. 

Among those who deny that war is a legal sanction, are : Amos, Remedies for 
WoTy 137 ; Bonfils (Fauchille),No. 29 ; Chauveau, note on p. 14 ; Chretien, No. 7 ; 
Funck-Brentano et Sorel, 7 ; Nippold, Die Fortbildung des VerfahrenSy 86 ; and i 
Pradier-Fod6r6, No. 23. See also Dumas, Sanctions de Varhitrage (1905), 
passim; Moulin, La doctrine de DragOy 121-129 ; Preuss, Das Volkerrecht im Dienst 
aes WirtschaftlebenSy 17 £f. and note on p. 58; Lagorgette, Le r6le de la guerre, 
318 ff. ; and Lueder, in 4 Holtzendorff's Handbuch, § 49. 



THE NATURE OF INTERNATIONAL LAW 9 

is the real or main sanction of the Law of Nations ; for the attempt 
to characterize war as a guarantee of law or a means of justice in 
ordinary cases must be considered harmful as well as vain. Not 
that war is to be condemmed in all cases, but it is a final appeal 
only to be justified as a last resort after every other mode of 
obtaining justice or redress has failed. 

10. Intematioiial Law as a Part of Municipal or State Law. 
— That International Law is a part of the law of the land is no 
longer a matter of serious doubt, at least in England and the 
United States. That the Law of Nations, in its full extent, is a 
part of the law of England was the view of Blackstone (Com- 
mentarieSy 1765, Bk. IV, ch. 5, p. 67) and of Lords Talbot and 
Mansfield in the eighteenth century {Triquei v. Bath, 1764, 3 
Burr. 1478, and Scott, 6 ; and Heathfidd v. CkUUm, 1767, 4 Burr. 
2015, and Scott, 189), as also of Lords Ellenborough and Stowell 
{Wolf v. Oxholm, 1817, K. B., M. and S. 92, and Scott, 496 ; The 
Maria, 1799, i Rob. 350, and Scott, 858 ; and the Recovery, 1807, 
6 Rob. 348) in the early part of the nineteenth century. 

This view appears to have prevailed in England ^ until appar- 
ently reversed by a bare majority of the Court of Crown Cases 
Reserved in the famous case of Queen v. Keyn (L. R., 2 Exchq. 
Div. 63, and Scott, 154) in 1876. This Court declined, in the 
absence of an Act of Parliament, to assert British criminal juris- 
diction over the captain of the German steamer Franconia who 
had been convicted of manslaughter in the Central Criminal 
Court for having killed a passenger on board the British steamer 
Siralhclyde (as the result of a collision due to negligence) within 
two and a half miles from the English coast, i, e. within the limits 
of the marine league. In spite of the fact that this decision was 
promptly nullified by Act of Parliament, and although there was 
a strong minority opinion supported by six of the thirteen judges, 
the authority of the older view was considerably shaken.* But 
all reasonable doubt in England as to the legal nature of Inter- 

" See, e.g. the leading case of the Emperor of Austria v. Day and Kossuth 
(1861), 2 Gifford, 623, 678. 

* 42 Vict., c. 73. For discussions of the case of Queen v. Keyn^ see i Cobbett, 
Cases t 132 ff. ; Holland. Studies y 185; Maine, Int. Law, 38-45; 2 Stephens, 
Criminal Law, 29-42; Triepel, Volk^rrecht und Landesrecht, 151 ft.; Walker, 
Science, 173 ff.; Westlake, in 22 Law Quarterly, 15-16; Willoughby, " The Legal 
Nature of Int. Law," in 2 A. J., 360 ff. 



lO ESSENTIALS OF INTERNATIONAL PUBUC LAW 

national Law has now apparently been finally removed by the 
opinion of Lord Chief Justice Alverstone (formerly Sir Richard 
Webster) in the case of West Rand Central Gold Mining Co. v. 
The King (L. R. 1905, 2 K. B. 391). Although the petitioners 
(British mine owners in the Transvaal who sought to recover 
gold which had been seized by officials acting for the Transvaal 
Government) were refused redress on the ground that annexation 
was an act of State which could not be inquired into by the 
Court, Lord Alverstone assented to the proposition laid down by 
Lord Robert Cedl that '' International Law is a part of the law 
of England." He said : 

" It is quite true that whatever has received the common consent 
of civilized nations must have received the assent of our country, 
and that to which we have assented along with other nations in 
general may properly be called International Law, and as such 
will be acknowledged and applied by our municipal tribunals 
when legitimate occasion arises for those tribunals to decide 
questions to which doctrines of International Law may be 
relevant." * 

This doctrine laid down by Lord Alverstone has in its favor a 
long, unbroken series of decisions in the United States. As early 
as 1804 Chief Justice Marshall declared, in the case of The 
Charming Betsey (2 Cranch, 64, 1 18) : " An act of Congress should 
never be construed to violate the Law of Nations if any other 
possible construction remains.'"^ In the case of the Nereide 

** Lord Alverstone, however, added the following warning : ''But any doctrine 
so invoked must be one really accepted as binding between nations, and the Inter- 
national Law sought to be applied must, like anything else, be proved by satis- 
factory evidence, which roust show either that the particular proposition has been 
recognized and acted upon by our own country, or that it is of such a nature 
and has been so widely and generally accepted that it can hardly be su^iosed that 
any civilized State would repudiate it. The mere opinions of jurists, however 
eminent or learned, that it ought to be so recognized, are not in themselves suffi- 
cient. They must have received the express sanction of international agreement, 
or gradually have grown to be a part of International Law by their frequent prac- 
tical recognition in dealings between various nations/' On the importance of this 
case, see Scott, "The Legal Nature of Int. Law," in i i4. /. 855 ff. ; Westlake, in 
22 Law Quarterly Review , 14-26 ; and 6 Columbia Law Review ^ 49~50- 

'^ But this must not be interpreted to mean that the courts would give effect 
to a custom of International Law in the face of a statute clearly commanding a 
violation of its principles. In such a case the State would be responsible to the 
Community of Nations. It should be added that the jurisdiction of the courts 
does not extend to questions of a purely political nature. 



THE NATURE OF INTERNATIONAL LAW n 

(1815, 9 Cranch, 383, 423) he declared Interaational Law to be 
" a part of the law of the land." In the Scotia (1871, 14 Wall. 
170, 187-188, and Scott, 17) Justice Strong said: "No single 
nation can change the law of the sea. That law is of universal 
obligation, and no statute of one or two nations can create obliga- 
tions for the world. Like all the Laws of Nations, it rests upon 
the common consent of civilized coimtiies. It is of force, not 
because it is prescribed by any superior power, but because it 
has been generally accepted as a rule of conduct/' The most 
recent and authoritative case in the United States is that of 
the Paquete Habana v. U.S. (1899, 175 U.S. Rep. 677, and 
Scott, 19) in which our Supreme Court held (p. 686) that even 
in the absence of treaty, express proclamation, or municipal law, 
" by an andent usage among civilized nations, beginning cen- 
turies ago, and gradually ripening into a rule of International 
Law, coast fishing vessels, pursuing their vocation of catching 
and bringing in fresh fish, have been recognized as exempt, with 
their cargoes and crews, from capture as prize of war. 

" International Law is a part of our law, and must be ascer- 
tained and admitted by the courts of justice of appropriate ju- 
risdiction, as often as questions of right depending upon it are 
duly presented for their determination. For this purpose, where 
there is no treaty and no controlling executive or legislative act 
or judicial decision, resort must be had to the custom and usages 
of civilized nations; and, as evidence of these, to the works of 
jurists and commentators who, by years of labor, research, and 
experience, have made themselves peculiarly well acquainted with 
the subjects of which they treat. Such works are resorted to by 
judicial tribimals, not for the speculations of their authors con- 
cerning what the law ought to be, but for trustworthy evidence 
of what the law really is." ^ 

BIBUOGRAPHT 

Relation between Intematioiial Law and Municipal or State Law. — 

3 Butler, Treaty-making Power , §§ 398-399 and notes; Heffter (Ge£Fcken), 
{ 2, note on page 3; * Holland, Studies, ch. 10, pp. 176-200; Holtzen- 
dorff, in i Handbuckj ^g^sst 1 17-120; KsLuimsLny Rechtskraft des int. Rechts 

^ Justioe Gray, in the Paquete Habana, op. cU., p. 700, or Scott, 19. Cf. Ibid.f 
in Bilkm v. Guyot (1894), 159 U. S. Rep. 113, 163. 



12 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

(1889) ; Maine, Int. Law, 36 ff. ; * i Moore, Digest, §§ 1-2 ; i Nys, Droit int,^ 
185-189 ; * I Oppenheim, §§ 20-25 ; * Scott, Cases, 6-10, 13-22 ; *Ibid., in i 
A. J., 852 ff. ; 2 Stephens, Crim,Law, 29 ff. ; Triepel, Vdlkerrecht und Landes- 
recht (1899), 134-155 ; Walker, Science, 44 ff. ; * Westlake, in 22 Law Quar^ 
terly, 14-26; Wheaton (Atlays), note, §§ 15 a, p. 29; *Wilioughby, in 2 
-4. /., 357-365 ; Woolsey, § 29. 

For cases bearing on this subject, the student is particularly referred 
to Scott's Cases on Int, Law, § i. Introduction. See especially Triqiiet v. 
Bath, K. B., 3 Burr. 1478 (1764); U, S. v. Smith (1820), 5 Wheat 153; 
The Scotia (1871), 14 Wall. 170; The Paquete Habana (1899), 175 U. S. 677 ; 
and the West Rand Central Gold Mining Co, v. The King, L. R. (1905), 
2 K. B. 391. 

Relation between International Morality and International Law. — 
Amos, Jurisprudence, 393 ff., 504; Ibid,, Remedies for War, 91-106, 114- 
116; Atkinson, Int, Morality (1851); * Austin (Campbell's ed.), §§ 136, 
148, 177, 199, etc.; * Bernard, Lectures on Diplomacy, 1 66-1 71; Bonfils 
(Fauchille) , No. 39 ; * Creasy, 1 1 -48 ; Despagne t (4th ed.) , No. 50, pp. 6 1-62 ; 
Ferguson, The International Conference at the Hague (1899), passim; Hibben, 
in Int, J, of Ethics, 156-160; Hobhouse, Democracy and Reaction, ch. 8; 

* Holtzendorff, in i Handbuch, § 17 ; Lawrence, Principles (3d ed.), §§ 13-14 ; 
Lecky, Map of Life, 491 ff. ; Maine, Int, Law, 33-34 ; i Nys, Le droit int,, 
204-205; Pollock, Essays on Jurisprudence, 35; i Rivier, 24; Senior, 
in Edinburgh Retnew (1843), ^^3 ^-'t Sidgwick, Elements of Politics, ch. 17; 
I Twiss, § 105; Ullmann (2d ed.), 36-37; Westlake, Chapters, 15-16; 
Woolsey, §§ 3, 15-16, 20 b, 21, 23. 

Relation between Law and Morality. — *Ames, Law and Morals, in 
22 Harvard Law Rev,, 97-113; i Austin (Campbell's ed.), §§ 6-8, 135, 
144, 148, 167, 172, 177, etc.; I Ahrens, Philosophic des Rechts, § 37, pp. 
308-312 ; I Bentham, Works (Bowring^sed.), Principles of Morals and Legida- 
tion, especially chs. i, 2, and 17 on " Utility " ; French, in 2 Philos, Rev., 35-53 ; 

* Gamer on " Political Science and Ethics," in 17 Int. J. of Ethics, 194-204 ; 
Heron, Jurisprudence, chs. 2, 3, and pp. 51-54 ; * i Hobhouse, Morals in Evo' 
lution, chs. 2, 3, and 6 ; Holland, Jurisprudence (loth ed.), ch. 3 ; * Jellinek, 
Die social-ethische Bedeutung von Recht, Unrecht und Strafe (1878) ; i Lioy, 
Philosophy of Right (Hastie's trans.), Prolegomena, 131, and Pt. I, ch. 6; 
Mezes, Ethics, Pt. II, ch. 13, 302-324 ; i Oppenheim, §§ 3-9 ; * Palmer, The 
Field of Ethics, Lect. II ; Paulsen, A System of Ethics, Book III, ch. 9 ; 

* Pollock, First Book, etc., ch. 2 ; * Pulszky, Theory of Law and Civil Society, 
389 ff.; Rattigan, Jurisprudence (1892, 2d ed.),4-8; Sidgwick, The Meth- 
ods of Ethics, Bk. HI, chs. 5 and 6; Ibid., The Elements of Politics, 
ch. 13; Taylor (T. W.), in 5 PhUos. Rev., 36-50; i Westlake, Chap- 
l^^f 2-3 ; * I Westermarck, The Origin and Development of Moral Ideas, 
chs. 5 and 7 ; Whewell, Elements of Morality and Polity (1845) ; Willoughby, 
The Nature of the State, note on pp. 113-114; Wilson, The State, §§ 1451^ 
1456; I Wundt, Ethics, Pt. IH, ch. 4, 160-187. 

International Comity. — Bonfib (Fauchille), No. 38; * Creasy, 35-37; 



THE NATURE OF INTERNATIONAL LAW 13 

Despagnet (4th ed.), 62-63; Dicey, Conflict of Laws (2d ed.), 10-15; 
Fiore, Nos. 198-199 ; He£Fter (Geffcken), {{ 3, 193-196 ; Gareis, § 9 ; ^Holland 
(loth ed.), Jurisprudence, 406-409 ; * i Holtzendorff, Handbuch, { 19 ; 3 
Lawrence, Commentaire, 54 ff . ; Leseur, { 30 ; Lorimer, Institutes of the Law 
of Nations, 358 ; i M6rignhac, Traiti, 279 ff. ; i Nys, Le droit int., 201-204 ; 
I Oppenheim, § 19 ; Rivier, 25 ; Story, Conflict of Laws, §§ 28, 33-38 ; 
UUmann (2d ed.), 38-39; Westlake, Private Int. Law, 144; i Wharton, 
Conflict of Laws, §§ i^^ and i a ; Wheaton, § 79 ; Woolsey, §§ 24, 81. See 
especially an essay entitled '' Vdlkerrecht und Vdlkercourtesie," by F. 
Stoerk, in StaatsrechUiche Abhandlungen fur Laband (1908), 129-170. 

The Nature of Diplomacy or Internatioiial Policy. — Acton's (Lord) 
Introduction to Burd's // Principe; * Benoist, Le Machiavilisme, 1 (1907) ; 
Bernard, Lectures on Diplomacy, Lect. Ill; Bonfils (Fauchille), No. 66; 
Bluntschli, Politik, 1, 1-32 ; Bulmerincq, in Marquardsen's Handhuch, 1, § 3, 
and in 9 ^. D. /., 361 ff. ; 3 Calvo, § 1310 ; Despagnet (4th ed), No. 50, pp. 
63-65 ; Dyer, Mackiavelli and the Modem State (1904) ; Flassan, Histoire de la 
diplomatiefran^ise, " Discours preliminaire " ; Foster, Practice of Diplomacy, 
ch. I ; Frederick the Great, Anti-Machiavel (French text, ed. 1834) ; * Free- 
mantle, on views of Comte, in 3 Contemp, Rev., 477 ff. ; * Funck-Bren- 
tano et Sorel, 74 80 ; Halleck (Baker's 3d ed.), 373 ; * Harrison (Frederic), 
on "The Modem Machiavelli," in 42 Nineteenth Century (1897), 463-471 ; 
Hay (John), in Addresses, No. 10, on "American Diplomacy"; Heffter, 
{{ 4, 198, 227-234 ; * I HiU, History of Eu opean Diplomacy, Preface ; Holtz- 
endorff, in i Handbuch, § 18 ; Ibid., Politik, Bk. II, chs. 4-7 ; * i Janet, 
Histoire de la science politique (3d ed.), " Introduction sur rapports de la 
morale et de la politique," and liv. UI, chs. i and 2, on Machiavelli, Leseur, 
Introduction, § 31 ; Morley, Romanes Lecture on Machiavelli, in Miscel- 
lanies, Essay I ; von Mohl, Encyklopddie, §§ 86-89, 105-107 ; * Nippold, Die 
Fortbildung des Verfahrens, 30 ff. ; i Nys, Le droit int., 205 ; Njrs, Origines, 
295 ff. ; I Pradier-Fod6r6, Cours de droit diplomatique, ch. i ; Ibid., Traiti, 
I, No. 37, pp. loo-ioi ; I Rivier, 432 ; Rumelin, Politics and Morals (1901) ; 
Stratford de Redcliffe (Lord), on "International Relations," in 2 Nineteenth 
Century (1877), 471 ff. ; i Treitschke, Politik, § 3, and II, §§ 27-28 ; i Twiss, 
§ 97 ; Ullmann (2d ed.), 37-38 ; Whewell, Elements of Morality and Polity. 

Much of the literature on this subject (the theory and practice of diplo- 
macy) centers around the name of Machiavelli. For bibliographies on Ma- 
chiavelli, see Burd, in i Cambridge Modern History, 719-726 ; the Bibliograph- 
ical Note in the ** Introduction " to Burd's // Principe (1891) ; i Janet, 596- 
601 ; and the Catalogue of the British Museum. 

International Private Law or the Conflict of Laws. — * Amos, Jurispru- 
dence, ch. 15 ; Bonfils (Fauchille), No. 4 ; * 3 Calvo, liv. VII, 1-23 ; Despagnet, 
No. 49; Funck-Brentano et Sorel, ch. 2; Hall (6th ed.), 51-52; i Halleck 
(Baker's ed.), 53; * Holland (loth ed.), Jurisprudence, 404 n., 407-409, 
412 ; Holtzendorff, in i Handbuch, § 16 ; Lawrence, Principles (3d ed.), § 7 ; 
Lorimer, Institutes of the Law of Nations, Bk. II, ch. 9 ; * 2 F. de Martens, 
391-505; I M6rignhac, 5-9 ; 4 Phillimore; i Pi6delidvie, 15-17; i Nys, 



14 ESSENTIALS OF INTERNATIONAL PUBUC LAW 

Lt dfoU ifU.y 190-193; *3 Pradier-Fod6r6, pp. 519-1237; Rattigaiiy 
Jurisprudence^ ch. 1 1 ; Salmond, Jurisprudence, di. 25 ; Ullmaim, § 3 ; i 
Westlake, 239-40; * Wheaton, §§ 77 ff. ; Woolscy, {{ 73-74. For a list 
of the most important works on International Private Law or Conflict of 
LawSy see the Syllabus to Scott's Cases on Iniernaiional Law, § S, p. zzv. 

The student is especially recommended to read the following: Beale's 
Cases, Preface, and Summary at the close of the third volume ; Minor, 
Conflict of Laws, Introductory chapter to the second edition of 1905, and 
ch. I on ''Preliminary Principles"; and Preface to Wharton's Conflict of 
Laws. 

International Administrative Law. — Bridgman, The First Book of World 
Law (1910) ; Descamps, Les offices int. (1894) ; Melli, Die int, Unionen; Moy* 
nier, Les bureaux int. (1892) ; Ncumeyer, Grundlagen des int. Venvaltungs- 
recht(igii); Ibid., Int. Verwaltungsrecht, 1 (1910); Nippold, Die Fortbil^ 
dung des Verfahrens (1906), 61 £f. ; Poinsard, Droit int. conventionnel (1894) ;. 
Ibid., Les unions (2d ed. 1901) ; Ibid., Le droit int. au XXe siicle (1907) ; 
* Reinsch, "Int. Unions and their Administration, '' in i i4 . 7. (1907), 579-623 ; 
Ibid., ''Int. Administrative Law and National Sovereignty/' in 3 A. J, 
(1909), 145; * Ibid., Public Int. Unions (1911). 

The first jurist who appears to have fully realized the importance of 
these phenomena was L. von Stein. See his Handbuch der Verwaltungs- 
lekre (3d ed.), I, 245 ff., 263 ff., and II, 828 ff. Among the few 
authorities on International Law who deal with this subject are : Liszt 
(3d ed.), §§ 16-17, 28-30, 33-36; 2 M^rignhac, 694-718; i Oppenheim, 
§§ 458-471, 578-591; UUmann (2d ed.), §§ 68-69; Zom, §§ 16-17. 

The Attstinian or Imperative View of Law. — Among those authorities 
who may be cited as virtually in favor of the Austinian or imperative 
view of law, or some slight modification thereof, are: i Acollas, Cours 
iUmentaire de droit, Introduction, p. vii; * Austin (Campbell's ed.), In- 
troductory and Lects. I, V, and VI of the Province of Jurisprudence De- 
termined, and Lects. XXII and XXVII on *' Sanctions " ; Fricker, Das 
Problem des Vdlkerrechts, in 34 Zeitschrift fUr Staatswissenschaft, 368 ff. ; 
Hobbes, Z>e Ctve, cap. 14, § 4; * Holland, Jurisprudence (loth ed.), 127- 
129, 380-383; *i Ihering, Zweck im Recht (1884, 2d ed.), 320 ff. ; 
*Lasson, Prinzip und Zukunft des Volkerrecht (187 1), 43 ff.; 2 Lorimer, 
Institutes (1884), 189; Leacock, Elements of Political Science, 100-104; 
Pollock, First Book on Jurisprudence, 96; Pomeroy, §§ 9-30; * i Puchta,. 
Gewohnheitsrechi, 142 1 ; Pufendorf, De jure not. et gentium, lib. II, cap. 3, 
§ 23; Salmond, Jurisprudence, §§ 16-17; *2 Stephens, History of Crim- 
inal Law, 32 ff.; Stephens Q. K.), Int. Law and Iniernatumal Relations 
(1884), Pt. I; Wheaton, History, 95 f.; ^VJUloughby, Nature of the State^ 
199-204; *Ibid., "The Legal Nature of International Law," in 2 i4. /. 
(1908), 357-365; Wilson, The StaU, § 1457; Zom, § 2. 

As against the Austinian or imperative view, the following authorities may 
be cited : Amos, The Science of Jurisprudence, 394, 409-413 ; * Bergbohm,. 
Staaisvcrtrdge und Gesetze als Quellen des Vdlkerrechts (i87i),i2 ff. ; Bernard^ 



THE NATURE OF INTERNATIONAL L.\W 15 

Lectures on Diplomacy, 171 ; Bluntschli, Introduction^ 2-1 1 ; * Bonfils (Fau- 
chiUe), N08. 26-31 ; * Bryce, Studies in History and Jurisprudence, 499-502 ; 
Bulmerincq, in i Marquardsen, § 12 ; Ibid., Praxis und Tkeorie des VMer- 
recktSy 158 ff. ; Bry, § 2 ; Carter, in the Report of the American Bar AssociO' 
tion (1890), 222 ff. ; Chauveau, § 2 ; * Clark, Practical Jurisprudence, 5, 181- 
187; Creasy, 70-76; Despagnet, Nos. 38-40; i Fiorc, Nos. 186 ff., and 
30 R, D. I., 5-25 ; Gareis, § 2 ; Hall (5th ed.), 13-16 ; * Harrison (Fr.) on 
"The English School of Jurisprudence," in 24 Portn. Rev. (1878), 475-492, 
682-703; I Halleck (Baker's 3d ed.), 51, 54; Heffter (Geffcken), § 2, es- 
pecially note on pp. 3-5; Holtzendorff, in i Handbuch, §§ 6-7; Jenks, 
Law in the Middle Ages, ch. i ; * i Jellinek, Das Recht des modernen Staates 
(1905, 2d ed.), 328, 364-368; Ihid., Staatenvertrdge (1888), 7-8, 37 ff.; 
Ihid., Ofentliches Recht (1892), 195, 296-314; Kaltenborn, Kritik des 
Volkerrechis (1837), ch. 6 ; Kebedgy, in 29 R. D, /., 113 ff. ; Lawrence, Essays, 
1-41; Ibid., Principles (3d ed.), §§ 8-11;. Leseur, 37 ff. ; Liszt (3d ed.), 
§ I, pp. 6-8; I F. de Martens, §§ 1-2; Maine, Inl. Law, Lect. II, 26-53; 
* Ibid,, Early History of Institutions, Lects. XII and XIII ; i M^rignhac, 18- 
24 ; Mougins de Roquefort, La solution juridigue des conjliis internationaux 
(1889), 36 ff. ; I Nys, Le droit int., 133-143, and Les origines. Introduction ; 
I Oppenheim, §§ 2-10; i Phillimore, Introduction, ch. i ; i Pi^delievre, 
5-1 1 ; * Pollock, " Sources of International Law," in 2 Columbia Law Rev., 514 
ff. ; I Pradier-Fod6r6, Nos. 7-12 ; Rattigan, Jurisprudence, 12-20, 355-357 ; 
Renault, Introduction, 6 ff. ; Rivier, 18-24 ; Russell (Lord), in 19 Rep. Am. 
Bar Assoc. (1896), 255 ff. ; Salmond, Jurisprudence, 95-106, 628-639; 
Savigny, System, § n ; * Scott, on the "Legal Nature of International Law," 
in I i4. 7. (1907), 83-166; Triepel, Vdlkerrecht und Landesrecht (1899), 
103 ff. ; I Twiss, §§ 104-105 ; * UUmann, § 4; Walker, History, ch. i, 2-3 ; 
Ibid., Science, chs. i and 2, 1-56; i Westlake, 5-9; Ibid., Chapters, 11-15; 
Woolsey, §§ 26-29. 

Several of the authorities cited above are difficult to place. Thus Sa- 
vigny speaks of International Law as at once positive and imperfect. The 
position of Ihering is also somewhat difficult to determine. Like Savigny 
he is cited on both sides of the question. He (Ihering) insists upon force 
as an essential element in law; but he also declares (p. 325) that the legal 
nature of the Law of Nations is not a subject of doubt. 

On p. 13 of his First Book on Jurisprudence (1896), Pollock q)eaks of 
International Law as consisting of "these customs and observances in an 
imperfectly organized society which have not fully acquired the character 
of law, but are on the way to become law ; " and on p. 96 he appears to 
deny that the "duties of independent States to one another" are "legal 
duties or the subject of legal rules." In an earlier work (Essays in Juris- 
prudence and Ethics, published in 1882, p. 35), he speaks of the "extreme 
purists of the analytical school, who deny that it (Int. Law) is really law." 
He asks (on p. 37), "should we not, then, regard public opinion as the final 
sanction of International Law in every case, — a sanction with physical 
force behind it, no doubt, in one or another ^pe, but with a force latent 



i6 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

and undefined, and to be called into action only in an extreme case?" 
I have therefore cited him on both sides of this question. 

Sahnond (Jurisprudence, p. ii) defines law as ''the rules recognized and 
acted on in courts of justice." Although he maintains that the imperative 
theory of law is defective in that it only contains the most important element 
of the truth, yet he must be classed as essentially Austinian, inasmuch as 
he holds that ''law is based on physical force." 

It may be noted that Westlake, who formerly denied the positive char- 
acter of International Law (see Treatise on Int, Private Law, sd ed., z880y 
pp. 3 £F.) is strongly anti-Austinian in his later works. 

For references showing a tendency toward a reversion to the Austinian 
or imperative view of law, due to imperial legislation in modem Germany, 
see * Pound on "The Scope and Purpose of Sociological Jurisprudence/' 
in 24 and 25 Harvard Law Review (191 1 and 19x2), 593 and 144-145 respec- 
tively. 



T' 



CHAPTER n 

IHB BASIS OR SOURCBS OF UffTBRHATIONAL LAW 

II. The Basis or Foundation of International Law. — ^.Like 
the State itself, International Law is ultimately based upon the 
innate or inherited sociability of human nature directed by specific 
human needs and interests. Though a fighting animal almost 
constantly engaged in a desperate struggle for existence with 
his environment and frequently at war with his fellows, man is 
also a social and political being who has long since discovered 
that mutual cooperation and organization are at least as essen- 
tial to human well-being and progress as are struggle, rivalry, 
and competition.^ 

Ever since his earliest appearance on this planet, men have 
apparently lived not in isolation, but in more or less hostile or 
friendly groups which form ever widening circles (families, 
hordes, clans, cities, nations, states, confederacies, etc.) within 
which the practice of mutual aid or cooperation, due to a sense 
of interdependence, has largely supplanted, or at least greatly 
modified, the habit of struggle and competition. This habit or 
practice of mutual aid and cooperation was gradually extended 
to intergroupal relations, until it now includes all civilized states, 

' For iUustratlons of the operation of this principle even among lower animals and 
savages, see the first three chapters of Kropotkin's remarkable book entitled Mutual 
Aidy a Factor of Evolution (1902). Cf. Romanes, Animal Intelligencef passim; 
Espinas, Societis animates (1877); Moran, Animal Behavior, ch. 5; Topinard, 
Science and Faith (1899), ch. 4. 

On the general principle, see Giddings, Principles of Sociology, Bk. II, ch. z, 
and Bk. Ill, chs. i, 2,. and 3, passim; Durkheim,i!>e la division du travail social, 
liv. I, ch. I, 28 fiF., chs. 5 and 6; Novicow, La critique du darwinism social, ch. 8; 
Puls^y, Theory of Law and Civil Society, ch. 6 ; and Ross, Social Control, chs. i, 7, 
lo-ii. See Tarde, Les lois de V imitation, ch. 3, for a criticism of this view, which 
he perhaps rightly holds to be insufficient. Conscious and unconscious imitation 
resulting in fixed habits undoubtedly play an important r61e m the development of 
the social order. 

c 17 



i8 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

races, and nations, and appears to be entering upon its final phase 
of world organization.^ 

12. The Society or Community of States. — In international 
relations this solidarity of interests, based on a human need for 
cooperation and organization, has stimulated the growth of 
customs and led to the formation of rules and agreements for the 
maintenance of durable community interests and peaceful inter- 
course even in time of war. It has given rise in modem times 
to the conception of a Community, Society, or Family of States,* 
the members of which retain their sovereignty and independence 

r 

and are regarded as possessed of equal rights and duties in the 
eyes of International Law ; but who have also developed a strong 

* On World Organizalion, see Bridgman, World Organization (1905) ; Duplessiz, 
Vorganization inl, (1909); Hill, World Organization^ etc. (191 1); Novicow, La 
Pidiration de VEurope (1901) ; Schiicking, Die Organization der Wdt (1909) ; Von 
Stengel, Weltstaat (1909) ; and Trueblood, The Federation of the World (1899). 

Among those authorities who find the basis or foimdatton of International Law 
in the principle of human sociability or solidarity of interests in one form or an- 
other, may be cited: Bluntschli, i; Bonfils (Fauchille), Nos. 5 ff. ; Bry, No. i ; 
Chauveau, No. i; Chretien, No. i; Despagnet, Nos. 2-3, 38; i Fiore, Nos. 
151 ff. ; Geffcken, Die Jnteressenlehre als Grundlage des Staates und Vblherrccht 
{1898) ; Groti us (Whewell's trans.), Prolegomena, §§ 7-8, 16-18, 22, 23; Hefter 
(Geffcken), § 2 ; Holtzendorff, Elements^ § i, and i Handbtich, 44 Q. ; Hautefeuille, 
Droit maritime^ ch. I; Kaltenbom, Kritik, 298; Liszt, § i ; iF.de Martens, § x, 
p. I and 45-52; I M6rignhac, 2, 18; Nippold, Die Fortbildung des Verfahrens 
(1907), 35 ff. ; I Nys, Le droit int.^ 65-66; i Ortolan, Dip. de la mer^ ch. i, p. 2 ; 
I Phillimore, § VII; i Pi^elidvre, i, 13-14; Pillet, in R.G.D.I. (1894), i ff.; 
Pradier-Fod6r6, No. 21, p. 72; Preuss, Das Volkerrecht im Dienste des Wirtschafts- 
lebens (1891) ; Suarez, Tractatus de legibus (161 2), II, ch. 11, No. 9, quoted by Nys, 
Les originest 11-12; Ullmann, §1; Westlake, Chapters, 26-2y; Vattel, §§ 10-12. 

Several of the authorities (e.g. i Rivier, Principes, p. 7) make the common legal 
consciousness of the society of nations, based on reason, the primary source of Inter- 
national Law. But in the light of modem psychology, a purely rationalistic basis 
for International Law may well be doubted. The preamble to the Hague Conven- 
tions of 1899 and 1907 for the Pacific Settlement of International Disputes recog- 
nizes "the solidarity which unites the members of the society of civilized nations." 

* Westlake {Int. LaWj I, p. i) defines International Law as *' the law of the society 
of States or nations." Oppenheim (I, § 12) uses the term "family of nations.'' 
The majority of the publicists who make use of the conception referred to above 
seem to prefer the term "international community" or "community of States or 
nations." On the "Law of the International Community," see especially, i 
F. de Martens, §§ 39, 45-52. In German the term Siaaienvercin is employed. On 
the nature, rise, and growth of the "Society of Nations," see especially Lawrence, 
International Problems^ chs. 1-3. 

The Spanish theologians of the sixteenth century seem to have been the first 
publicists to give expression to this conception, but it was first given a wide currency 
by Grotius. 



BASIS OR SOURCES OF INTERNATIONAL LAW 19 

sense of interdependence or internationalism. This Inter- 
national Community is by no means a World State or cirdlas 
maxima based on abstract principles of justice and equity. It is 
rather a " free society of peoples united by the solidarity of their 
tendencies and interests." * 

13. Utility as the Purpose of International Relations. — 
The guiding motive or purpose of international relations should 
be utility or the satisfaction of collective needs and interests, 
whether inteUectual, moral, or material. These become ever 
greater, more varied and imperative as the mutual interdepend- 
ence and solidarity of nations constantly increases. They have, 
indeed, become so great and complex that it has been found neces- 
sary to give certain rules and customs of international intercourse 
the solemn character of International or World Agreements and 
thus render them more imperative. There has even been an 
attempt to create some suitable machinery for their better observ- 
ance and enforcement. In the further development of Inter- 
national Law, motives of utiltity and a sense of international 
community interests should be allowed to have at least as much 
influence as tradition ^nd precedents based upon metaphysical 
conceptions of natural law or abstract principles of justice. Ju- 
rists must learn to look forward as well as backward, and should 
have regard to the probable or possible social consequences of a 
given practice rather than to mere conformity with past usages 
and ideals. Social utility, or adaptability to human needs and 
sodal conditions, is thus the ultimate test of international, as 
of all human law. The better to answer these needs and inter- 
ests, the Law of Nations tends, like every other branch of juris- 
prudence, to become more pragmatic and sociological.^ 

14. The Primary Sources of International Law. — The 
primary sources of positive International Law are : (i) custom 

* Cf. Bonfils (Fauchille), No. 13; and i F. de Martens, 268. "To move and 
live and have its being in the great community of nations is as much the normal 
condition of a single nation, as to live in a sodal state is the normal condition of 
a single man." i Phillimore, § VII. 

• On UtilUy as a test of International Law, see Creasy, ch. 3, especially the cita- 
tion from Story {Confiici of Laws^ § 35) on p. 62. The doctrine is derived from Ben- 
tham. See especially Bentham's Works (Bowring's ed.), Pt. VIII, p. 538. 

For a remarkable series of articles on " Sociological Jurisprudence," see Pound, 
in 24 and 25 Harvard Law Rev, (191 1 and 191 2). They will soon appear in 
book form. 



20 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

based on tadt consent and imitation; and (2) convention or 
express agreement by means of treaties.' 

Customary International Law has grown by means of tadt 
agreement and imitation or consent. It is the Conmion Law of 
Nations which has developed gradually from usage or precedents 
set by i>articular States as the result of acquiescence or imitation 
on the part of the other members of the international community. 
It has as its guarantee or sanction the consensus of opinion and 
usage of the dvilized world, and it forms the oldest and intrinsi- 
cally the most important portion of International Law ; for it is 
deeply rooted in the habits, sentiments, and interests of mankind. 

In dealing with treaties as a source of International Law, it is 
necessary to distinguish between treaties which are mere bargains 
or contracts between States, or those which contain no rules for 
the regulation of international conduct, and treaties which are 
declaratory or stipulatory of International Law. Especially 
important are the great Lltemational or World Agreements which 
preserve the form of treaties (reserving to each State the right 
of sanction or ratification), but which are really great acts of 
international legislation and which create or codify existing inter- 
national practice. Such are, e.g, the Declaration of Paris of 
1856, the Geneva Conventions of 1864 and 1906, and the sixteen 
Conventions of the Hague Conferences of 1899 and 1907.^ 

15. The Evidences of International Law. — The evidences 
or witnesses of International Law are the places where the law 

* Westlake (I, pp. 14-15) makes "custom and reason'' the two sources of Inter- 
national Law. But he thus confuses one of its sources with a means of interpreta- 
tion. As Oppenheim (I, note on p. 22) justly remarks: "Reason is a means of 
interpreting law, but it cannot call law into existence.'' Writers frequently confuse 
the sources of International Law with its basis ot foundation on the one hand, and the 
evidences or witnesses to its existence on the other. Some Continental publicists 
(e.g, Gareis, § 9, and Leseur, pp. 22 f .) find a source of International Law in the neces- 
sitas of the Roman jurists. For a criticism of this view, see UUmann (2d ed.), 
p'. 40. 

' As pointed out by Jellinek (Offentliches Recht, pp. 193 ff. Cf. Staaienverbind- 
ungen, 107 fif.), such agreements (Vereinbarungen) are the results of the collaboration 
of many individual wills working for the satisfaction of common interests, whereas 
ordinary treaties ( Vertrdge) are the product of several wills working for particular 
and often opposing interests. See also Binding, Das GrUndung des norddeutschen 
Bundes (1889) ; i Nys, Le droit int.^ p. 157; and Triepel, VlUkerrecht, passim. 

For a list of lawmaking treaties, see i Oppenheim, §§ 558-568 ; and Introduc- 
tion to Whittuck, International Documents. 



BASIS OR SOURCES OF INTERNATIONAL LAW 21 

as applied or agreed upon is found,* or the documents which bear 
evidence or witness to existing principles and customs. Arranged 
in the order of their extrinsic importance from the standpoint of 
formal authoritativeness, they are as follows : 

(i) International or World treaties which virtually legislate or 
codify existing practice. These are the works of International 
Congresses or Conferences which are composed of delegates 
vested with full powers to negotiate and conclude treaties of the 
character indicated above. 

(2) The Agreements of International Congresses and Confer- 
ences whose work has not received official sanction or ratifica- 
tion. Examples are the Brussels Conferences of 1874 and the 
Geneva Convention of 1868. The work of such Conferences has 
sometimes been of great importance, inasmuch as they have codi- 
fied or mfluenced existing practice. 

(3) Treaties, whether between several or a considerable num- 
ber of States, which merely purport to be declaratory of existing 
law or stipulatory of new principles or usages. Such are, e.g. 
the Armed Neutralities of 1780 and 1800, the Three Rules of 
the Treaty of Washington of 1871, and Franklin's famous treaty 
of 1 785 between the United States and Prussia which stipulated 
for the exemption of private enemy property from capture at sea. 

(4) The decisions of judicial tribimals, more especially of Courts 
of Arbitration, International Commissions of Inquiry, and Prize 
Courts. The decisions of the Geneva Board of Arbitration which 
settled the Alabama claims in 1872, the North Sea International 
Commission of Inquiry of 1906 which investigated the North 
Sea Incident,^ and the decisions of the Hague Tribimal created 
in 1899, will imdoubtedly be treated as important precedents in 
similar cases in the future. If the International Prize Court and 
the Court of Arbitral Justice provided for by the Hague Confer- 
ence of 1907 ever come into existence, their decisions will, of 
course, take first rank in this category. 

Prize Courts, though hitherto national in character, are supposed 



" This is the sense in which the term sources " is generally used by historians, 
but jurists use the term in a dififerent sense. The phrase "evidences of Interna- 
tional Law'' is borrowed from Walker, Science, ch. 2. 

* See Hershey, Iniernational Law and Diplomacy of the Russo-Japanese War, 
ch. 8; SLud infra, § 308, note on pp. 326-327. 



22 ESSENTIALS OF INTERNATIONAL PUBUC LAW 

to administer International Law ; and the decisions of judges of 
international reputation for learning and impartiality, like Sir 
William Scott (later Lord Stowell) and Justice Story, have always 
been treated with great respect, especially in England and the 
United States. . Such decisions have more value for the student 
of positive International Law than the mere opinions of any 
publicist, however eminent, partly because they bear a certain 
stamp of judicial authentication, but still more because the cases 
have presumably been argued by able counsel and carefully con- 
sidered from every standpoint, more particularly with a view to 
their practical bearings. 

On the other hand, excessive deference is sometimes paid in 
England and the United States to judicial opinions which are 
mere obiter dicta, and judicial decisions are often given a more 
extended application than they deserve* In dealing with judi- 
cial decisions, the student should always remember that they are 
necessarily of limited application, both as to subject-matter and 
in respect to nationality, and that International Law is based 
upon general usage or international practice. This implies a 
much wider field of study and research than is afforded by any 
supply of judicial decisions, however copious. This condition 
of our science is one of the gravest objections to the teaching of 
International Law by the main or exclusive use of the '^ case 
system." 1° 

(5) Unilateral Acts or Laws, Ordinances, • Proclamations, 
Decrees, Declarations or Instructions issued by a State to its 
naval, military, diplomatic, or consular representatives for the 
capture and disposition of prizes, the conduct of its armies and 
navies, or the transaction of its business abroad. Famous ex- 
amples of this sort are the French Marine Ordinance of 1681 ; 
the British Admiralty Manuals and the American Naval War 
Code of 1900 (withdrawn in 1904) ; the Instructions for the 
Government of the Armies of the United States in the Field, 
issued during our Civil War ; the United States Neutrality Laws 

10 "The decisions of the courts of every country, so far as they are founded upon 
a law common to every country, will be received, not as authority, but with respect. 
The decisions of the courts of every country show how the Law of Nations, in the 
given case, is understood in that country, and will be considered in adopting the 
rule which is to prevail in this." Chief Justice Marshall, in Thirty Hogsheads 0} 
Sugar v. Boyle (1815), 9 Cranch, 191, 198. 



BASIS OR SOURCES OF INTERNATIONAL LAW 23 

of 1794 and 1818 and the British Foreign Enlistment Acts of 1819 
and 1870 ; and the various Declarations of Neutrality issued at 
the outbreak of important wars. 

(6) Opinions of statesmen as expressed in important state 
papers and diplomatic correspondence, and opinions of legal 
advisors of the various Governments, such as those of the law 
officers of the Crown in Great Britian and of the Attorneys- 
General of the United States. Such opinions are inf^rtant in 
that they bear a certain official stamp and are usually well con- 
sidered and practical ; but they are apt to be biased by advocacy 
of a particular cause. Moore's monumental IfUemaiional Law 
Digest (in eight volumes, 1906) illustrates the wealth of material 
of this sort existing in the foreign archives of a single modem 
Government. 

(7) The writings of eminent jurists and authorities on Inter- 
national Law. ** In the absence of higher and more authorita- 
tive sanctions, the ordinances of foreign States, the opinions of 
eminent statesmen, and the writings of distinguished jurists 
are regarded as of great consideration on questions not settled 
by conventional law. In cases where the principal jurists agree, 
the presumption will be very great in favor of the solidity of their 
maxims ; and no civilized nation that does not arrogantly set all 
ordinary law and justice at defiance, will venture to disregard the 
imiform sense of the established writers on International Law."" 

'^ Without wishing to exaggerate the importance of these 
writers, or to substitute, in any case, their authority for the prin- 
ciples of reason, it may be affirmed that they are generally impar- 
tial in their judgment. They are witnesses of .the sentiments 
and usages of civilized nations, and the weight of their testimony 
increases every time that their authority is invoked by statesmen, 
and every year that passes without the rules laid down in their 
works being impugned by the avowal of contrary principles." " 

The above passages from Kent and Wheaton were approvingly 
cited by Justice Gray in his opinion in the case of the Paquete 
Eabana. He added: ''Such works [the works of jurists and 
commentators] are resorted to by judicial tribunals, not for the 
speculations of their authors concerning what the law ought to be, 

u I Kent, Com,, 19. "Wheaton, 1 15. 



24 ESSENTIALS OF INTERNATIONAL PUBUC LAW 

but for trustworthy evidence of what the law really is." " Espe- 
cially valuable is the work of learned societies like the Institute 
of International Law. 

(8) The histories of International Relations, more particularly 
of wars, negotiations, and treaties. Such histories, though they 
should be used with the greatest caution, contain almost adiaust- 
less stores of information bearing upon the development of the 
theory and practice of the Law of Nations. Especially inqx>r- 
tant are the histories of diplomacy and International Law, like 
those of Hill, Laurent, Walker, and Wheaton.^^ 

BIBUOGRAFHT 

Sources of Intematioiud Law. — Amos, Jurisprudence (1872), 404- 
409 ; Baker, First Steps, 19-23 ; * Bergbohm, StaatetnertrUge uud Gesetu 
alsQudiendes Vdlkerrechts (1877) ; * BonfiJs (FauchiUe), Nos. 45-63 ; Bulmer- 
incq, in Marquardsen, §11; Bry, Nos. 4-6 ; * i Calvo, §§ 27-38 ; * Chauveau, 
JntroductioHy § 9 ; Creasy, ch. 5 ; Chretien, Nos. 10-24 ; Despagnet, Nos. 

»» The Paquete Habana (1899), 175 U. S. 677, 700. Cf, Hilton v. Guyot (1894), 
159 U.S. 113, 163-164, 214-215 ; Lord Coleridge, in Queen v. Keyn (1876), L. R., 
2 Excfaeq. Div. 63, 154 ; and Lord Alverstone, in West Rand Central CM Mining Co, 
V. The King (1905), 2 K. B. 391, 401-402, 407. 

As in the case of certain great International Treaties, some of the earlier publi- 
cists like Grotius, Bynkershoek, and Vattel should perhaps be listed as primary as 
well as secondary sources or evidences of International Law. They not only 
interpreted and systematized existing international custom ; but, like the Roman 
imperial jurists, they virtually exercised legislative functions, and many of their 
mere opinions were long regarded as authoritative. In the case of modem writers, 
a consensus of opinion, or evidence amounting to proof, is necessary before a given 
rule or custom can be accepted as unquestionable law. It should also be noted that 
publicists seem to enjoy a greater authority on the Continent than in England and 
the United States, and their authority seems somewhat greater in the United States 
than in England. 

^* See List of Authorities, infra. Some authorities lay stress upcm the im- 
portance of Roman Law as a source of International Law. See, e.g. Creasy, 83-86 ; 
Halleck (Baker's 3d ed.), 57 f. ; Maine, Ancient Law (Pollock's ed.), 92 ff. (</. 
Int. Law^ 20 ff.) and notes in Appendix, 396 ff. ; i Phillimore, §§ xzxviii-xl. But 
whatever value it may have originally possessed as the source from which Gro- 
tius and others drew many of their rules, the Corpus Juris Civilis cannot, as Calvo 
(f > S 38) justly observes, '* be applied to the international relations of modem 
peoples without the gravest inconveniences," except in the domain of International 
Private Law. Halleck (I,ch. 2, §18 of Baker's 3d ed.), Phillimore (I, §xxiii), 
and Pomeroy (§ 32) still speak of the Divine Law or principle of justice as a source 
of International Law ; and a few publicists (like Hautefeuille, Discours preliminaire 
to Droit des neutres and Droit maritime ^ ch. i) constantly refer to an imaginary 
"primitive law" {droit ou hi primitive). For an able criticism of Hautefeuille on 
this point, see Historicus, 75 ff. 



BASIS OR SOURCES OF INTERNATIONAL LAW 25 

54-66 ; X Fiore, liv. U, ch. 5 ; Hall (6th ed.), 5-13 ; Gareis, § 9 ; i Halleck 
(Baker's 3d ed.), 55^34 ; Heffter (Geffcken), §3 ; Hautefeuille, Droit mari- 
timCf ch. i; Holtzendorff, EUments, 14; *Jlfid,, in i Hatidbuch, §§ 21-39; 
Jellinek, Die rechUiche Nalur des Slaalenvertrdge (x88o) ; ELaufman, Rechts- 
krafi des ini, Rechts (1899), 2 ff. ; *Lawreiicey Principles (3d ed.),' §§ 6z-66 ; 
Liszt, § 2; X Lorimer, Institutes of the Law of Nations; Maine, Int, Law, 
Lect. I ; X Martens, § 43 ; * i M6rignhac, 79 ff. ; Nippold, Die Fortbildung des 
Verfahrens, 19 ff. ; i Nys, Le droit int., 144-165 ; * i Oppenheim, §§ 15-19; 
Perds, § 2 ; I Phillimore, Pt. I, chs. 3-8 ; x Piddelievre, No. 4 ; * Pollock, on 
''Sources of Int. Law," in 2 Columbia Law Review (1902), 511-524; Pom- 
croy, §§ 31-46 ; i Pradier-Fod6r6, Nos. 24-35 » i Rivier, Principes, § 2 ; Snow, 
§ 3; Taylor, §§ 30-95, X15; Triepel, VUkerredU und Landesrecht (1889), 
§ 3 ; I Twiss, ch. 6 ; UUmann (2d ed.), § 8 ; * Walker, History, ch. 2 ^ i 
Westlake, Int, Law, ch. 2 ; * Wheaton, § 15 and notes of his various com- 
mentators; Wilson, 4; Woolsey, §§ 28, 30; Zom, § 3. 



CHAPTER III 

THE mSTORT OF INTERNATIONAL RELATIONS DURINO 
ANTIQUITY AND THE MIDDLE AGES 

1 6. International Law impossible before the Rise of the 
Modem European State System. — The history of International 
Law is essentially a history of the law governing the members of 
the International Community of States in their relations with 
one another. Inasmuch as the observance of well-established 
customs of the Law of Nations implies the existence of an Inter- 
national Community of States based upon a general recognition 
of the fundamental principles of territorial sovereignty and legal 
equality of independent States, such a law (in the strict and full 
sense of this term) could not possibly have been developed prior 
to the rise of the modern European State System, at the close of 
the Middle Ages or during the fifteenth and sixteenth centuries 
of our era. Nevertheless, we are by no means without evidence, 
even during Antiquity and the Middle Ages, of the observance in 
intercommunity intercourse of certain rules and customs, mainly 
with a religious sanction. This was especially the case in Greece, 
where there were developed rules and customs of intermunici" 
pal law which, in many respects, bear a truly remarkable resem- 
blance to our modern system of international jurisprudence. 

17. The International Relations of Antiquity. — The inter- 
national relations of the Ancient World have been represented by 
historians as almost wholly based upon force, and the nations of 
antiquity are usually described as living in a state either of almost 
complete isolation or of perpetual warfare with one another. But 
recent studies and researches, based largely upon archaeological 
discoveries, have demonstrated that such was by no means in- 
variably the case ; and that the older conception of the interstate 
and intertribal life of antiquity, as either non-existent or as char- 
acterized by a ceaseless and remorseless struggle, needs consider- 

26 



THE raSTORY OF INTERNATIONAL RELATIONS 27 

able modification. This is even the case with very primitive and 
backward races.^ 

True it is that the interstate relations of Antiquity, as also of 
the Middle Ages, were largely controlled by force. An appeal 
to arms, the divine right of the stronger, constituted the normal 
mode of settling disputes and securing concessions or advantages* 
War was regarded as the natural condition of mankind ; peace^ 
as an artificial state secured by treaty or convention. Diplo- 
macy, in the sense of statecraft, was by no means unknown ; but 
it was Machiavellian in character, and was usually employed as 
an aid to war, or a substitute therefor, rather than as a means 
of preserving peace. The foreigner, at least technically, was 
usually regarded as an enemy, i.e. as a creature without legal 
rights or obligations. 

18. The Patriarchal System. — Under the patriarchal sys- 
tem, which has played such an important rdle in the sodal and 
political development of our race,^ the father and the elders rep- 
resented the family and the gentes, or clans, in their relations 
with other family or gentile groups. Political power, at least in its 
earlier stages, resulted mainly from the application of the principle 
of confederation ; and as the families and genies formed themselves 
into pkratries (or curiae) and tribes, and finally developed into 
the dty or confederated gerUes or tribes, this power and responsi- 
bility was conferred upon the representative or representatives 
of the whole association of associated groups,' each group remain- 

' See especially Kropotkin, Mutual Aidy etc., ch. 3, on "Savages" ; and an inter- 
esting study of the relations between Australian groups by Wheeler, in 40 R. D. /. 
(1908) , 5-30. See also Letoumeau, La guerre dans les diverses races humains (1895), 
chs. 2-8. 

Maine (Int. Law^ p. 11) justly observes : "Man has never been so ferocious or 
so stupid as to submit to such an evil as war without some effort to prevent it." 
Montesquieu seems to have had some perception of this truth when he said : "All 
countries have a Law of Nations, not excepting the Iroquois themselves, though 
they devour their prisoners ; for they send and receive ambassadors, and understand 
the rights of war and peace. The mischief is, that their law of nations is not founded 
on true principles." Esprit des his, Bk. I, ch. 3. 

' This is at least true of the Aryan and some of the Semitic peoples. It is not 
implied in the text that the patriarchal system was the primitive form of sodal and 
political organization. It was, relatively speaking, a late and highly developed 
form of political life. Nor is it implied that the family preceded the clan histori- 
cally. 

' Amongst the Iroquois, " the council of the tribe had power to declare wai 
and make peace, to send and receive embassies, and to make alliances. Intercourse 



28 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

ing more or less of an independent unit within its own sphere. 
Each group was bound together by the ties of a real or fictitious 
kinship,* and by common religious observances and beliefs. They 
naturally regarded all outsiders as foreign or hostile, i.e. as having 
no share in the common worship, and therefore no rights other 
than those granted by treaty * or accorded by religious duties of 
hospitality. 

Such being the general course of early social and political 
development, we are not surprised to learn that a given tribe, 
village community, or dty possessed little sense of intertribal or 
community obligations. Although the practice of mutual aid 
and cooperation had long since greatly modified the struggle for 
existence and power within the group (which indeed was often 
socialized to a remarkable extent),' the struggle between groups 
continued — a struggle in which the operation of the law of 
natural selection, resulting in the so-called survival of the fittest, 
was only slightly modified by a sense of religious obligation, and 
by certain rudimentary social interests and feelings. 

19. The Law of the Ancient World. — " Woe to the con- 
quered " ^ — the right of the stronger to the persons and posses- 
sions of the vanquished — was the doom pronounced by the 
ancient world upon nearly all conquered races and peoples. Any 
mitigation of the rights of the conqueror was, generally speaking, 
due to considerations of policy and enlightened self-interest, 
rather than to a sentiment of pity or a recognition of human rights. 

Yet, as intimated above, the history of the international rela- 
tions of Antiquity is by no means one of unrestrained conquest and 
slaughter, as too often represented by the older historians. The 
ancient Egyptians, the Babylonians or Chaldeans, the East 

between independent tribes was conducted by delegations of wise-men and chiefs." 
Morgan, Ancient Society (1877), 118. 

* Fictitious kinship was created by the ceremony of adoption by means of which 
the newcomer renounced the worship of his former household gods and was ini- 
tiated into the worship of those by whom he had been adopted. The ancient cus- 
tom of adoption might be compared with the modem practice of naturalization. 
See especially Coulanges, The Ancient City; and Fowler, The City State of the 
Greeks and Romans y passim. 

^ This obligation was also a religious one, being sanctioned by an oath. 

• This is illustrated by the communism of primitive groups which still survives 
in the mirs or village communities of Russia. 

^ A proverbial saying which Plutarch puts into the mouth of Brennus, the Gallic 
chieftain. See his Lives, " CamiUus." 



THE HISTORY OF INTERNATIONAL RELATIONS 29 

Indians, and the Chinese* were in the main peaceful, agricultural, 
and industrial peoples, averse to bloodshed and conquest except 
when driven thereto by great warriors or conquerors. The 
Assyrians, the Hebrews, the Phoenicians and Carthaginians, 
and the Greeks and Romans appear, on the other hand, to have 
been more warlike and bloodthirsty. 

20. India. — In India the Br&hmans formulated maxims of 
diplomacy which read like citations from Machiavelli's Prince;^ 
but, imlike the precepts of the great Italian of the Renaissance, 
they recommend moderation, and even liberality, to the van- 
quished. The rules of warfare, laid down in the Code of Manu, 
seem to have been inspired by a genuine regard for the rights of 
humanity. Humane and even chivalric treatment of combatants 
as well as of non-combatants is recommended. Although the 
king is advised to ravage the enemy's territory, " and ever spoil 
his fodder, food, water, and fuel," to " burst tanks, enclosures, 
and trenches," to " assail him and terrify him by night" ;^® yet 
" one should not, fighting in battle, slay enemies by concealed 
weapons, nor with barbed or poisoned (weapons), nor with fire- 
kindled arrows. Nor should one (mounted) slay an enemy down 

' On "International Law and Diplomacy in Ancient China/' see Martin, The 
Lore of Cathay, cc. 22 and 23; and Mueller, in 3 ZeUschrift fUr ViAkerrecht und 
Bundesrecht (1908), 192-205. 

* £.f. "He (the king) should also appoint an ambassador learned in all the treat- 
ises, who understands gestures, expression, and acts (which are) pure, clever, well- 
descended. . . . For verily the ambassador alone unites, (and) divides also the 
united ; the ambassador conducts that business by which they are divided or not. 
In affairs he (the ambassador) should know by (his) obscure signs and acts the emo- 
tions, intentions, and efforts of him (the other king), and (should learn) what he 
intends to do from (his) dependents. . . . 

"A king should know the next (king to him to be) an enemy, as also the adher- 
ents of (that) enemy; the (one) next to the enemy (to be) a friend ; the one beyond 
both (to be) neutral. All those he should gain by conciliation and the like means, 
separate or together; also by valor and policy. . . . Whenever (a king) infers 
a sure increase (of power) of himself in the future, and at the present time (suffers) 
little annoyance, then let him have recourse to an alliance. 

"He (the king) should endeavor to overcome (his) enemy by alliances, bribery, 
and treachery — all together or separate — never by battle. ... But in case the 
three expedients already mentioned do not suit, let (him), prepared, fight, so that 
he may conquer his enemies. ..." 

See The Ordinances of Manu, translated by Bumell and Hopkins, Lect. VH, 
Nos. 63-68, 155, 158-164, 169, 177, 180, 198, 200-210, etc. The date of this remark- 
able compilation is uncertain. It is generally set down as about 500 B.C. 

" Ibid., Lect. VII, Nos. 195 and 196. 



30 ESSENTIALS OF INTERNATIONAL PUBUC LAW 

on the ground, a eunuch, a suppliant one with loosened hair, one 
seated, one who says * I am thy (prisoner) ' ; nor one asleep, one 
without armor, one naked, one without weapons, one not fight- 
ing, a looker-on, one engaged with another ; nor one who has his 
arm broken, a distressed man, one badly hit, one afraid, one 
who has fled : remembering virtue (one should not slay them)." ^ 
21. Egypt. — The most remarkable contribution to our 
knowledge of the international relations of the ancient Orient 
resulted from the discovery at Tell-el-Amama, in 1888, of nearly 
300 tablets in cuneiform or Babylonian writing. These formed a 
portion of the foreign archives of the Egyptian Pharaoh IkhnAton, 
and contained some of the diplomatic correspondence of that 
monarch and his inunediate predecessor (Amenhotep III) with 
Asiatic kings, together with reports of Egyptian governors in 
Syria. This correspondence" throws a great deal of light, not 
only upon the international relations of the early part of the four- 
teenth century B.C., but also upon the organization of the Egyp- 
tian Empire by Thutmos III, and the remarkable Semitic civiliza- 
tion of Syria several centuries prior to the Exodus of the Hebrews. 
It shows that the yoke of Egypt was much lighter than that of 
Assyria, Carthage, or even Rome.*' Besides, this correspondence 
shows that far from being isolated, as formerly believed, these 
famous empires of antiquity were in fairly close and constant 
commercial and intellectual intercourse, and that their Govern- 
ments cultivated peaceful and friendly relations with one another. 
With the kings of Mitani, Assyria, and Babylonia, and even with 
the Hittites, friendly relations were maintained by means of a 

" The Ordinances of ManUy translated by Burnell and Hopkins, Lect. VII ^ 
Nos. 90-93. The Greek writers bear witness to the humane conduct of the 
East Indians in warfare. According to Megasthenes, they never destroyed the 
fields of the husbandman nor cut down his trees. Arrian adds that the peasants 
fearlessly followed the plow and gathered in their fruits and harvests in the midst of 
battle and warfare. For the passages of the Greek writers bearing on this subject, 
see Arrian, Ind.y c. II ; Diodor. II, 36, 40; and Strabo, XV, 484, ed. Cassaub. 

" For summaries of the contents of the Tdl-d-Armana Tablets, see 2 Petrie^ 
History of Egypt, 187-241 ; and Conder, The Tell-Armana Tablets (1893). For Eng- 
lish translations of many of the tablets, see Records of the Past (new series), passim, 
and Condor. 

" On the Organization of the Egyptian Empire, see Maspero, Struggle of the Na- 
tions, pp. 271-280; and Paton, Early History of Palestine and Syria, ch. 6, 82 fif. 
On the Civilization of Syria, see especially Sayce, in 88 ConUmp. Rev. (1905), 264- 
277. 



THE HISTORY OF INTERNATIONAL RELATIONS 31 

frequent exchange of letters, presents, and embassies ; and even 
marriage alliances were not unknown.^^ 

The oldest treaty of which the text has come down to us is that 
between Ramses II (the Sesostris of Greek legend and the 
" Pharaoh who knew not Joseph " of Hebrew tradition) and 
Khetasar, the King of the ELheta or Hittites (about 1272 B.C.). 
It is a very remarkable dociunent, providing as it does not only 
for a defensive alliance, with a recognition of perfect equality and 
reciprocity between the two sovereigns, but for the mutual extradi- 
tion of political refugees and inmiigrants, a codicil even providing 
for humane treatment of the latter. It is pleasing to learn that 
this treaty, which established a stable balance of power in S3nia 
and was cemented by a marriage alliance, was loyally observed 
by both parties, at least during the reign of Ramses 11.^^ 

But in spite of the essentially mild and peaceful character of 
the ancient Egyptians, the monuments of Egypt bear witness 
to their cruelty in warfare and barbarous treatment of prisoners, 
whose heads or hands were often cut off and bodies mutilated ^^ 
in the most frightful fashion, apparently for the purpose of regis- 
tration. The Pharaoh himself sometimes presided at these 
bloody ceremonies, and even conquered princes were subject to 
the most hmniliating treatment. The chariot of the conqueror 
was ornamented with the heads of the slain ; and enslaved cap- 
tives were chained and set to work, under the whips of hard task- 
masters, at the public quarries, brickkilns, or dockyards.^^ The 

^* With the Mitani, a treaty of friendship cemented by marriage had been made 
at least as early as the reign of Thutmos IV (about 142&-1411 b.c). The reigning 
Pharaoh also obtained several daughters of the king of Babylonia in marriage, but 
we learn that a similar request on the part of the latter was peremptorily refused. 
Whereupon the king of Babylonia suggested that any beautiful Egyptian maiden 
would do, for who would be able to say, ''She is not a king's daughter/' 

" On this treaty, see especially Breasted, History of Egypt, 437-438; Maspero, 
The Struggle, etc., 401 ff. ; 5 Budge, History of Egypt, 48 ff. ; and 3 Petrie, History 
of Egypt, 64 S. For English translations, see 4 Records of the Past (first series), 
25-32 ; 3 Breasted, Ancient Records of Egypt, H 37^-391 ; and 2 Brugsch, Egypt 
under the Pharaohs, 1 71-176. 

^* On the Mutilation of Prisoners, see Maspero, The Struggle of the Nations, 228 
and note (cf. Ibid., Life in Ancient Egypt and Assyria, 189). See especially the 
Great Kamak Inscription of Memeptah, trans, by Breasted, in 3 Ancient Records of 
Egypt, % 588. 

" "Therefore, they did set over them taskmasters to afflict them with bur- 
dens. . . . And they made their lives bitter with hard bondage, in mortar and in 



32 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

lives of women and children were usually, though not always, 
spared. 

22. The Hebrews. — The Hebrews, themselves the victims of 
£g3^tian oppression, appear to have been more cruel and bar- 
barous than their taskmasters. Acting, as they supposed, under 
the express orders of Jehovah, they waged a relentless war of 
extermination against the natives of Palestine, with whom they 
were forbidden to intermarry or make covenants.^* The adult 
males were almost invariably slaughtered, and even women and 
children were frequently massacred. The book of Joshua is 
fiUed with accounts of such barbarities. Similar atrocities were 
also enacted by Saul and David.*' 

But the Mosaic code, so enlightened in many respects, contains 
the germs of a higher law of warfare than that enjoined and 
practiced in Palestine. The laws of Deuteronomy provide that, 
before attacking a city, an offer of peace shaU be made. If the 
offer is accepted, the inhabitants shall be made tributary. But in 
case of resistance all males shall be put to the sword. The 
women, children, and cattle may be spared if the cities are very 
distant ; in the case, however, of the " cities of which the Lord 
thy God doth give thee for an inheritance, thou shalt save alive 
nothing that breatheth ; but thou shalt utterly destroy them." 
A limit is also set to the right of devastation. Fruit-bearing trees 
are not to be destroyed, even for use in a siege ; for " the tree of 
the field is man's life." " 



brick and in all manner of service in the field." Ezod. 1,11,14. These captives seem 
to have been well fed, for the Israelites at times longed for the " flesh pots " of Egypt. 

** Ezod. zzxiv, ia-16, and Deut. vii, 1-3, 22-26. 

^* It is recorded that on one occasion Saul was commanded by the Lord, through 
Samuel, to "go and smite Amalek, and utterly destroy all that they have and spare 
them not ; but slay both man and woman, infant and suckling, ox and sheep, camel 
and ass." Saul "utterly destroyed all the people with the edge of the sword," 
but "spared Agag and the best of the cattle." Whereupon Samuel was angry, 
and "the Lord repented that he had made Saul king over Israel." i Samuel zv. 
For horrible acts of torture on the part of David, see 2 Samuel viii, 2, and zii, 
31. The latter passage states that he put the people of Rabbah "under saws, and 
under harrows of iron, and under azes of iron, and made them pass through the 
brickkiln ; and thus did he unto all the cities of the children of Ammon." 

On Hebrew Warfare^ see especially Letoumeau, La guerre^ etc., ch. 13. 

^ Deut. zz, 10-20. It was also the custom of the Egyptians to issue a sum- 
mons to surrender before proceeding to extremities. In case of a favorable response 
to such a summons, the inhabitants were treated as friends, and a moderate tribute 



THE fflSTORY OF INTERNATIONAL RELATIONS 33 

If the ancient Israelites stand relatively low in the scale of 
civilization as measured by the standard of humanity in warfare, 
it should never be forgotten that we owe to Hebrew seers and 
prophets the highest ideal of peace which the world possesses — 
the vision of the Millennium or Heavenly Jerusalem. This ideal, 
which was incorporated into Christianity by its Founder, finds 
its highest and most poetical expression in the identical language 
of Micah and Isaiah : '' And they shall beat their swords into 
plowshares, and their spears into pnming hooks ; nation shall 
not lift up sword against nation, neither shall they learn war 
any more." *^ 

23. The Asgyrians and Babylonians. — The monuments of 
Assyria and Babylonia, as also the records of the Hebrews, bear 
witness to the barbarity of the Assyrians and certain of the 
Babylonian monarchs in warfare. The bodies of the slain were 
often mutilated, and rebel captives were impaled and subjected 
to the most horrible tortures.^ Those who escaped were chained 
and enslaved. Whole nations were transplanted from one part 
of the empire to another.^ The writings of the Hebrew prophets, 

was imposed, i Brugsch, 402. From which we may infer that at least some of 
the provisions of the much-lauded Mosaic code were borrowed from the Eg3rptians. 

" Isaiah ii, 4, and Micah iv, 3. Cf, Isaiah zlv, 25: "The wolf and the lamb 
shall feed together, and the lion shall eat straw like the bullock ; and dust shall be 
the serpent's meat. They shall not hurt nor destroy in all my holy mountain, 
saith the Lord." 

" For details, see Maspero, Struggle, etc., 634 S, See especially the Inscription 
of Asahumazirpal, in 2 Records of the Past (new series), 134-177. 

This cruel and vainglorious monarch makes the following boast : "The nobles, 
as many as had revolted, I fiayed ; with their skins I covered the p3nramid. Some 
(of those) I immured in the midst of the pyramid ; others I impaled above the pyra- 
mid on stakes ; others, round about the pyramid, I planted on stakes ; many at the 
exit from my own country I flayed; with their skins I clad the fortress walls,'' 
etc. Col. I, II, 90-92, of the Inscription of Asshumazirpal. Cf. the translation 
of another inscription in Goodspeed, History of the Babylonians and Assyrians^ 
p. 197. 

It should be noted that these are cases of punishment for rebellion. " Coun- 
tries for the first time simunoned to submit to Assyria, if they resisted, were 
subject to the ordinary fate of the conquered, but not otherwise treated with 
special cruelty." Goodspeed, op» cit. 

* For example, the Israelites from Samaria to Mesopotamia and Media, and the 
Jews from Judea to Babylon. This policy of transportation, which appears to 
have been inaugurated by Tiglathpileser I (about 11 00 B.C.), was carried out on a 
colossal scale by conquerors like Tiglathpileser III (745-727) and Nebuchadnezzar 
n (604-562) . There are instances of its application in Roman history. It was also 
practiced by the Byzantine Emperors and even by Charlemagne. 



34 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

more especially of Jeremiah, contain a vivid portrayal of the terri- 
ble sufferings and devastations which resulted from the invasions 
of Nebuchadnezzar II, King of Babylon (604-562). 

24. The Medes and Persians. — The barbarous Medes and 
Persians could hardly be expected to mitigate the horrors and 
cruelties of oriental warfare. The pages of Herodotus contain 
many examples of the arrogance and ferocity of their monarchs.^ 
Men, women, and children were put to death or enslaved. Whole 
populations were transported.*^ , Mutilation of the dead and tor- 
ture of the living were freely practiced. Corruption through 
bribery and the encouragement of habits of luxury appear to 
have been used as a means of conquest and government.* 

There are, however, some lighter shades to this picture. The 
treatment of Themistocles by Artaxerxes was a notable instance 
of oriental hospitality which the Persians, better than the Jews 
or the Egyptians, knew how to practice. There was, it seems, 
at the Persian court a minister specially charged with the care 
and entertainment of guests.*' Besides, in dealing with the class 
of facts cited above, we should remember that the events recorded 
are scattered throughout an immense period of time, and that the 
ancient historian, like the mediaeval chronicler or present-day 
journalist, as a rule reported the extraordinary and exceptional 
rather than the ordinary and normal occurrences of everyday 
life. Moreover, as Laurent observes : " The words kingdom, 
empire, republic, should not mislead us into believing in the 

•* Judging from both Greek and Hebrew sources, Cyrus, the founder of the Per- 
sian Empire and one of the greatest men of antiquity, appears to have been an 
exception to this rule. 

" Cf. e.g. the treatment of the corpse of Amasis by Camb3rses (Herod. HI, 16) 
with that of Leonidas by Xerxes (Herod. VII, 238). 

*• See e.g. the advice of Crcesus to Cyrus — advice which is said to have been 
followed — to render the Lydians effeminate (Herod. I, 155). Greek statesmen 
frequently yielded to the temptations of Persian gold. 

^ Laurent, who reports this fact, together with many others (see i iiudes sur 
Vhumanitiy p. 477), adds : "It is a beautiful symbol of the mission which belongs 
to the department of foreign affairs. The diplomacy of the future, ceasing to be 
inspired by hate, will have no more important function than that of cultivating 
relations of friendship between nations." 

The Persians were not wholly ignorant of the value of arbitration as a means of 
preventing war. Herodotus (VI, 42) relates that Artaphemes, the satrap of Sardis, 
compelled the cities of Ionia "to make agreements among themselves, so that they 
might give satisfaction for wrongs and not plunder one another's land." 



THE HISTORY OF INTERNATIONAL RELATIONS 35 

existence of political unity where there reigned a great diversity. 
India has always formed an assembly of small associations with- 
out any consciousness of a common country. The Persians were 
only a juxtaposition of peoples and cities." ^ 

25. The Phoonicians and Carthaginians. — The Phoenicians 
are the first real conmierdal people with whom history makes us 
acquainted. Ancient commerce, in its beginnings at least, was 
a species of war, or, worse still, of piracy and brigandage. The 
colonies of Phcenida and Carthage were established by violence.^ 
To the horrible native barbarity of Phoenician warfare,** there was 
added the oppression and suffering wrought by the greed of mer- 
chants and systematic commercial exploitation. Wars partook 
of the nature of commercial ventures carried on by mercenary 
soldiers, and the hope of plunder became the guiding motive 
of foreign policy. The traders of the Mediterranean were domi- 
nated by material considerations, instead of by dreams of military 
glory and the passions inspired by religious zeal which animated 
great conquerors like Thutmos III, Tiglathpileser III, Nebuchad- 
nezzar II, and Cyrus the Great. 

The Carthaginian merchants placed restrictions and prohibi- 
tions upon trading by foreigners, and the navigation of the seas 
was forbidden even to colonies, their ports being closed.*^ Car- 
thage, indeed, resorted to the most violent measures in order to 
secure commerce in the Mediterranean.^ Her treatment of sub- 
ject races was cruel and selfish in the extreme.** 

26. The Interstate Relations of the Greeks. — In the Hellenic 
world the conditions were favorable to the growth of principles 
and fixed customs of an intermunicipal jurisprudence. The 

" There were of course some notable exceptions to this rule, as, e.g. Egypt, 
Assjrria, and the Hebrew kingdom of David and his successors. 

"Laurent, I, 500. 

^ For examples of mutilation and torture, see Judges i, 7 ; i Samuel zi, 2 ; 
2 Kings viii, 12. 

'^ Laurent, I, 544. 

"Montesquieu {Esprit des lots, Bk. XXI, ch. 11} observes that "Carthage had 
a peculiar law of nations. She caused all strangers who traded in Sardinia and 
towards the pillars of Hercules to be drowned." Grote (Pt. II, ch. 18) aays 
they drowned "any commercial rivals when they could do so with safety." 

** Poiybius (I, 72, trans, by Shuckburgh) thus describes their treatment of the 
Libyans : " They had exacted half of all agricultural produce ; had doubled the 
tribute of the towns; and in levying these contributions, had refused to show any 
indulgence ^Hiatever to those who were in embarrassed circumstances." 



36 ESSENTIALS OF INTERNATIONAL PUBUC LAW 

trdkif: or city-state was the center of dvic life and the unit or sub- 
ject of interpolitical relations. But the passion of the Greek for 
city autonomy greatly outweighed his sense of nationality. In 
spite of a close community of interests and ideas resting on race, 
religion, and common customs, the Greeks never developed a 
very definite body of positive intermunidpal law, as strictly 
applicable even amongst themselves. Their relations with each 
other were governed essentially by considerations of interest, 
convenience, or sentiment based on a sense of kinship and religion 
which took such organized forms as religious leagues or amphic- 
tyonies,^ political leagues or confederacies,^ the recognition of the 
military and political leadership of a single State, called the leader 
or hegemon ^ {^yefjMp) of Greece, and attempts to maintain a bal- 
ance of power between leading Greek States.^^ 

** Of these the most famous and influential was the Delphic Amphictyony, — a 
body of representatives of twelve tribes, — instituted for the purpose of safeguarding 
the interests of ApoHo at Delphi. But even the Delphic Amphictyonic League was 
essentially a religious body (although sometimes perverted to political uses), and did 
not extend over the whole Greek world. It did, however, recognize some principles 
of interstate comity and sought to humanize warfare. This is shown by the oath 
of its members: "We will not destroy any Amphictyonic town, nor cut it off from 
running water, in war or peace ; if any one shall do this we will march against him, 
and destroy his city." The Delphic League was in no sense a board of arbitration 
or Federal Council, as represented by some historians. On the Delphic Amphicty- 
onic Council, see especially Darby, Int. Tribunals (1904), i-io; and 2 Phillipson, 
Ini. Law and Customs of the Ancient Greeks and Romans (191 1), 5-1 1. 

*^ The most important of these were the Peloponnesian League, the Delian Con- 
federacy, and the Achscan and ^Etolian Leagues. The two latter were genuine 
Federal Unions. On these Leagues and Confederacies, see especially Freeman's 
scholarly work entitled A History of Federal Government. The best brief account 
of Federal Government in Greece is by Greenidge, Greek Const. History^ ch. 7. 

*• The first hegemon of Greece (in historical times) was Sparta. Her first 
hegemony lasted from about 550 to 478 B.C., and included the period of the Persian 
invasions. Then followed the hegemony of Athens, which lasted until 413, the date 
of the failure of the Sicilian Expedition. The second hegemony of Sparta falls 
within the period of the downfall of Athens (404) and the King's Peace or Peace of 
Antalcidas (386). During the period which follows we have a brief revival of Athen- 
ian power and the short-lived hegemony of Thebes (371-62). The hegemony in 
Greece is finally (after the battle of Chaeronea in 338) seized by Philip of Macedon. 

" The interstate relations of Greece during the fourth century, b.c, were to a 
certain extent controlled by attempts to maintain a balance of power between lead- 
ing Greek States by Persia and leading Greek statesmen like Demosthenes. The 
idea was suggested to Tissaphemes, the Persian satrap at Sardis in Asia Minor, 
by that remarkable political adventurer Alcibiades, although there are earlier in- 
stances of its actual application. 

During the third century B.C., the leading states of Greece were the Achaean and 



THE HISTORY OF INTERNATIONAL RELATIONS 37 

27. Greek Warfare. — The civilization of Greece not only 
greatly surpassed that of the Ancient Orient, but compared favor- 
ably, in some respects, with that of the modem world. Yet 
Greek warfare was characterized by great cruelty and severity. 
Except in Homeric times, mutilation" and torture were no longer 
practiced ; but quarter was not always given, and Greek freely 
sold Greek into slavery. If we compare the fierce combats of 
Homeric times with the relentiess struggles of the classical period, 
especially during the Peloponnesian War, one can hardly pronoimce 
unreservedly in favor of the latter. The treatment of the inhab- 
itants of Melos ^ by the Athenians, and the debates in the Athe- 
nian Ecclesia ^ on the fate to be meted out to the revolted Mytile- 
naeans, show to what lengths the democracy of the most civilized 
State of antiquity was prepared to go in the practice of a sangui- 
nary creed, based not on the brutal instincts of the barbarian but 
on pure considerations of state policy or political expediency. It 
should, however, be pointed out that the ** Greeks of the fourth 
century were more humane than those of the fifth." ^ 

28. The '^Customs of the Hellenes." — In their relations 
with each other, the Greeks recognized certain laws or " customs 
of the Hellenes " (tA p6fufia TtSi^ 'EXX171W1;), such as the inviola- 
bility of heralds and envoys, the right of asylum or sanctuary, 
and truces for the burial of the dead. The Boeotians declared 
that '' it was a principle acknowledged by all, that in an inva- 

iEtoIian Leagues and the maritime power of Rhodes. All Greece eventually fell 
under the dominion of Rome in the cx)urse of the second century B.C. 

On the balance of power in Greece, cf. " Essay on Balance of Power," in i Essays 
(ed. by Green and Grose), Pt. II, Essay 7 ; Wheaton, History, 16 ff. ; and 2 Phillip- 
son, op. cil.f ch. 18, pp. 1 01 ff. 

•• The mutilation of corpses was held by Pausanias to be "more worthy of Bar- 
barians than of Greeks." Herod. IX, 79. 

** The whole male population of Melos was slain and the women and children sold 
into slavery. The Dorian people of Melos had committed the offense of trying to 
remain neutral during the Peloponnesian War. The Athenians frankly repudiated 
all considerations of justice, and maintained that gods and men alike "alwa3rs main- 
tain dominion, whenever tbey are stronger." See Thucyd. V, 105. 

*® For these debates, see Thucyd. Ill, 37-48. The Ecclesia had decreed that all 
adult male Mytilensans should be put to death and the women and children sold 
into slavery. This decree was afterwards rescinded, and only those guilty of the 
revolt were tried and executed. But the case was argued in Uie Ecclesia solely on 
grounds of public policy or expediency. 

«i 2 Bury, History of Greece, 98. On the increasing humanity of the Greeks in 
the fourth century B.C., see Mahaffy, Social Life of the Greeks, 269-271. 



38 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

sion of each other's territory, they should abstain from injuring 
the temples that were in it " ** — a principle admitted by the 
Athenians, provided it did not conflict with the law of military 
necessity. Truces or suspension of hostilities for religious pur- 
poses, such as attendance upon the Olympic games,^ were ob- 
served, and certain territory, like that of Elis, was accounted 
more or less sacred and inviolable.^ 

29. Treatment of Prisoners, — Prisoners of war, whether 
Greek or barbarian, who surrendered unconditionally might be 
put to death or sold into slavery ; ^ but later customs brought 
about a considerable modification of the strict rule. Captives 
were sometimes admitted to ransom even in the Homeric 
Age, and Thucydides gives several examples of the exchange of 
prisoners.^ The survivors, including women and children, were 
usually sold into slavery. This was particularly the case with 
cities which surrendered unconditionally or which were taken 
by storm.*^ 

It was customary to divide the booty amongst the victorious sol- 
diery, i.e. after devoting one tenth of the spoil to the gods and a 
portion to the leaders and warriors who had particularly distin- 

** Thucyd. IV, 97. The Athenians had garrisoned and fortified the sanctuary 
of Apollo at Delium in Bceotia. The Boeotians refused to surrender the Athenian 
dead unless Delium were evacuated. The Athenians entered the plea of military 
necessity in reply to the charge of using the sacred water, but claimed that they had 
not injured the sanctuary. Thucyd. IV, 98. Bury (II, p. 486) correctly observes : 
'' There seems little doubt that the conduct of the Boeotians was a greater departure 
from recognized custom than the conduct of the Athenians.'' 

« Thucyd. V, 49. 

** Cf. Polyb. IV, 73-74; and Strabo, Bk. VIII, ch. 3, 33. Yet the "neutrality" 
of Elis was frequently violated, especially in later times. Some authorities have 
seen in the theoretical exemption of Elis from invasion an ancient instance of neu- 
tralization. The analogy is evident, but the imperfect "neutralization" of Elis, 
like that of temples and priests, rested wholly on a religious basis. 

*^ The Platasans who surrendered unconditionally to the Spartans in 427 B.C. 
claimed that " the law of the Greeks is not to kill such." Thucyd. Ill, 58. 
But their eloquent plea produced no effect on their hard-hearted judges. In 
case of conditional surrender, the " condition must be observed at the risk of 
offending the gods, provided it had been ratified by an oath." Greenidge, 
op. cU.f 47-48. 

*• Thucyd. II, 103, and V, 3. Laurent (II, p. 114) even cites a case of release on 
parole. 

^^ "It is a perpetual law amongst all men that, when a city is taken from an 
enemy, both the persons and property of the inhabitants belong to the captors." 
Xenophon, Cyrop., Bk. VII, ch. V, 73. 



THE mSTORY OF INTERNATIONAL RELATIONS 39 

guished themselves. Even landed property was frequently 
confiscated and thus divided. 

30. Treatment of Foreigners. — In general, the Greeks recog- 
nized no obligations to foreigners, i.e. citizens of another dty 
or country, unless founded upon the reUgious duty of hospitality 
or on treaties (avfifioXa) sanctioned by an oath. The /aA-omco*, or 
resident aliens, who were extremely numerous in great commer- 
cial centers like Athens and Corinth, could as a rule exercise their 
rights only through a patron (irpooTdrtt^).^ Communities were 
usually represented in the assemblies and law courts by Proxeni 
{irp6^€tfoi) who held a position somewhat analogous to that of 
modem consuls.^ Treaties of hospitality {uroTroXireia) some- 
times provided for reciprocity or equality of civil rights,*® and 
prescribed rules for the settlement of commercial disputes.*^ 

31. Arbitration. — But the most remarkable progress made by 
the Greeks in the development of interstate relations is to be found 
in their repeated attempts to prevent hostilities or to secure peace 
through arbitration. It must be admitted that such efforts 
were often unsuccessful," but they deserve credit for making the 
attempt. The arbitral clause (an agreement beforehand to sub- 

^ Corinth seems, however, to have been an exception to the general rule. In 
Corinth the resident alien could probably enforce his private rights In his own name. 
Greenidge, op, ciU^ 8. In Athens, the Archon Polemarchus had general jurisdiction 
over foreigners. See Aristot., Const, of Athens, 58. In course of time the Greeks 
gradually relaxed in their attitude toward foreigners. Actual practice varied 
greatly at different times and in different places. At the two extremes stood Athens 
and Sparta — the former being extremely lax or liberal, the latter very strict and 
exclusive. 

^ But the Greek Proxenus was usually a dtizen of the State where the aliens 
whose interests he represented resided. Thus Alcibiades represented the interests 
of Sparta at Athens. For a very scholarly work on the Greek Proxeni, see Mon- 
ceaux, Les proxenies grecques (1886). See also i Phillipson, op. cit., 147-156. 

*® Such as intermarriage and property rights. In a few cases they seem to have 
even provided for an interchange of political rights. Such a close alliance was known 
as a av/iroXiTMla. 

" They sometimes provided even for the selection of judges who formed a 
spedes of international court to which the foreigner might appeal without the inter- 
vention of a patron. See Greenidge, p. 54; cf. 2 Laurent, 123. On Rights and 
Duties of Foreigners in Greece and Rome, see i Phillipson, op. cit., chs. 5-12. 

■ For examples of arbitration, see Plutarch, Solon, 10; Ibid., Themis. 24; Herod. 
V, 83, 95, and VI, 108; Thucyd. V, 31; 2 Phillipson, ch. 20; and Egger (Les 
traitis chez les grecs et les romains, 67 ff.), who cites a number of cases of arbitra- 
tion from the inscriptions. For an interesting example of arbitration between 
Priene and Samos, recently unearthed, see $ A. J. (1911), 465-466. 



40 ESSENTIALS OF INTERNATIONAL PUBUC LAW 

mit disputes to judicial decision) was sometimes inserted into 
treaties." The arbitrations " related to disputes touching 
religion, commerce, boundaries, and the possession of contested 
territories, especially of the numerous islands scattered among 
the Grecian seas." " The arbitrators selected might be noted 
individuals, friendly cities, or the Oracle of Delphi. It appar- 
ently was the opinion of the greatest historian of Greece that " it 
is not right to attack as a transgressor him who offers to submit 
to judicial decision." * 

32. Greek Maritime Law. — In the field of maritime law, the 
Greeks also seem to have made some progress. Although 
piracy, which was regarded as honorable ^ in the Homeric Age, 
was still practiced during the classical period, it had been largely 
supplanted by legitimate and peaceful commerce. The first 
State which appears to have developed a body of maritime law 
was Rhodes, the leading commercial State of Greece during the 
third century B.C. Of this law, which is by some authorities 
supposed to have been adopted by the Roman Emperors, and 
some of the principles of which may have survived in the ConsokUo 
de la Mare of the Middle Ages, but one sentence has survived, 
at least in its original form. It constitutes the basis of the present 
doctrine of jettison. " If goods are thrown overboard to lighten 
the ship, as this is done for the sake of all, the loss shall be made 
good by a contribution of all." " 

33. The " Law of All Mankind." — Although even Aristotle 
regarded barbarians as slaves by nature, to whom the " laws of 
the Hellenes " did not apply, yet the Greeks recognized a vague 
and ill-defined " law of all mankind " (tA irdvrmv avOpemrtov 
v6/ufia).^ This "law" included at least the inviolability of 

" As, for example, in the Truce of 423, and the Peace of Nidas between Athens 
and Sparta in 421 B.C. See especially the treaty between Argos and Sparta, 
Thucyd. V, 79. Cf. Thucyd. I, 78; IV, 118. 

** Historical note on Arbitration, in 5 Moore, History of Arbitration , Appendix 
III, 4821. 

»» Thucyd. I, 85. For offers of arbitration, see Thucyd. I, 28, V, 41, and VII, 
18. 

" Thucyd. I, 5. 

^ Justinian's Digest, XIV, 2. On the so-called Rhodian Law, see an interesting 
article by Benedict, in 18 Yale Law Journal (Feb. 1909) ; and Ashburner, The Rhodian 
Sea- Law (1909). 

»• On the "law of all men," see Herod. VTI, 13 ; and Polyb. II, 58, and IV, 6. 



THE raSTORY OF INTERNATIONAL RELATIONS 41 

heralds and envoys, sanctity of those treaties which were sanc- 
tioned by an oath, and certain obligations of alliance and 
hospitality.^ 

34* The Pcdicy or Diplomacy of Rome. — The city-state of 
Rome first appears in the history of interstate relations as a 
member of the Latin League or Confederacy, of which she in time 
became the head and master. Through her renewal of the Latin 
Alliance in 493 b.c.,^ and her treaty with the Hemicans (486),*^ 
she laid the foundation of Roman power in Italy, the conquest 
of which, completed by 272 b.c.,^ was at least as much the 
effect of statecraft or diplomacy as of force." As a result 
of the Carthaginian and Macedonian Wars which followed the 
conquest of Sicily (241), Rome was drawn into the current of a 
world-wide imperialism, from which she ultimately emerged 

** Several instances of the violation of this '*Law of Ail Nations" are recorded 
by Herodotus (VII, 13) and Thucydides (II, 67). 

** This treaty, negotiated by Spurius Cassius, the historical founder of Roman 
diplomacy, became the model for treaties of equal alliance. ** There shall be peace 
between Romans and all communities of the Latins, as long as heaven and earth en- 
dure; they shall not wage war with each other, nor call enemies into the land, nor 
grant passage to enemies : help shall be rendered by all in concert to any community 
assailed, and whatever is won in warfare shall be equally distributed." Dionys. 

VI, 95. 

^ The particular object of this alliance was to sever the i£quians from the Vol- 

sdans and thus isolate the latter. It seems to have been the first application of the 
fundamental principle of Roman diplomacy — divide et impera. 

* I,e. as far north as Cisapline Gaul and as far south as Sicily. It is not quite 
correct to speak of the conquest of Italy. It was as the head of a powerful confed- 
eracy of Latin and Italian allies rather than as the conqueror or absolute sovereign 
of subject tribes and cities that Rome first appears as a great World Power. Though 
about one fifth of Italy was incorporated directly with the Roman Republic, it was 
rather by way of alliance or confederation than of direct annexation that the Roman 
mastery over the various races and cities of the Italian peninsula was obtained. 
These were placed in a condition of varied and unequal alliance with and dependence 
on Rome and isolation from each other. See especially Beloch, Der ilaliscke 
Bund (1880), on the Italian Confederacy. 

** Ortolan (History of Roman Law, Cutler's ed., 1896, § 181) thus admirably 
sums up the foreign policy of the Roman Republic : " To sow discord among different 
nations in order to array one against another, — to assist the vanquished in con- 
quering their conqueror, — to husband its own resources, to use those of its allies 
to invade the territories of its neighbors, — to interfere in the disputes of other 
States, so as to protect the weaker party and finally subjugate both, — to wage 
unnecessary wars, and prove itself stronger in reverses than in success, — to evade 
oaths and treaties by subterfuge, — to practice every kind of injustice under the 
specious guise of equity — this was the policy that gave Rome the scepter of all 
Italy, and which was destined to secure for it that of the entire known world." 



42 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

(about 146 B.C.) master, indeed, of the nations of the Mediter- 
ranean, but with her political liberties destroyed, her economic 
welfare impaired, and her national character greatly weakened. 

35. Roman Attitude toward the Conquered and Idea of a 
Common Superior. — In the treatment of the conquered and 
the organization of her conquests, the conduct of Rome was 
almost wholly controlled by motives of public policy or a more or 
less enlightened sense of political expediency. Her aims and 
achievements constitute in themselves a denial of the rights of 
other communities and nationalities, and it is possible, there- 
fore, to speak of a Roman Law of Nations only in the most 
restricted sense, unless it be at a very early period in the history 
of Rome. The world was dominated by a common superior, — 
first the Roman Senate and later the Roman Emperor, — who, 
for centuries, either directly or indirectly, ruled the provinces and 
vassal States and races of the Mediterranean world. This idea 
of a common superior, mediator, or arbitrator strangely persisted 
through the Middle Ages. It seems to have been due to the 
survival of historic traditions and recollections of the benefits 
conferred upon the world by the " Roman Peace " {Pax Romano) 
and the impartial administration of Roman justice under the 
Early Empire. 

36. The Jus BelA of the Romans. — In their attitude toward 
foreigners and in respect to the laws and customs of warfare 
{jus belli) y the Romans greatly resembled the Greeks.** As in 
the case of the Greeks, Roman usages of war were based upon a 
sense of religious obligation, but were modified by considerations 
of interest and the necessities of intercourse. The treatment of 
foreigners was more liberal at Rome than in Greece, and the foreign 
policy of Rome was certainly guided by a wiser statesmanship and 
a more enlightened sense of self-interest than that which charac- 
terized the Greeks. The Romans were both by training and 
temperament more calculating and judicial than the Greeks, and 
they had a greater talent for administration and organization. 

In view of the general similarity between Greek and Roman 
conceptions of international rights and duties, we need only 

" On the jus belli as practiced by the Romans, see Polyb. V, 11. The ideas 
of Cicero were mor*^ liberal, but seldom practiced. On Cicero's theory of interna- 
tional morality, see Wheaton, History 0/ the Luks of Nations^ 20-24. 



THE.raSTORY OF INTERNATIONAL RELATIONS 43 

notice two brandies of Roman law which concern international 
jurisprudence. One of these is of slight importance, the other of 
very great influence on the subsequent development of the Law 
of Nations. 

37. The Jus FetUk. — The jus feUale consisted of certain 
rules and ceremonies or modes of procedure for declarations of 
war and ratification of treaties of peace, which were of great 
antiquity and were intended to satisfy the religious scruples and 
sensitive " legal conscience " of the Romans." They were highly 
ceremonial and formal in character, and their guardianship was 
intrusted to a special body of priests known as the College of 
Fetiales. Only four just {i.e. legal) causes of war were rec- 
ognized,^ but it cannot be maintained that this had any ap- 
preciable influence on Roman practice, at least in historical 
times. The fetiales were mere agents of the Senate, and were 
practically bound to do their bidding; for in Rome religion 
was the servant and not the master of the State. 

38. The Jus Gentium. — The jus gentium belongs to the 
field of International Private Law rather than to that of the 
Law of Nations; but owing to its influence upon the thought 
of the later Middle Ages and the writings of publicists like Gen- 
tilis and Grotius, it became a very important factor in the growth 
of modem International Law. It consisted in that body of 
principles and usages common to all nations (including the 
Italians) among whom justice was administered by Roman' 

* In Greece war was usually declared through a herald ; but the Greeks seem to 
have been less strict in this respect than the Romans, for there are instances 
of war without declaration. 

•• These were : (i) Invasions or violations of Roman territory ; (2) and (3) vio- 
lation of the rights of ambassadors and of treaties or alliances ; and (4) military 
support given to an enemy or attack upon an ally by a hitherto friendly State. 
Even in these cases war was only justifiable after satisfaction had been demanded and 
refused. In case of refusal, war was formally declared by hurling a spear across 
the Roman frontier into the enemy's territory. For a description of this ceremony, 
see Livy, I, 32. On the jtts fetiale, see especially Hill, History of European Di- 
plomacy, I, pp. 8-1 1 and notes; and 2 Phillipson, op. cit.j ch. 26. 

War might be ended in three ways : (i) By a treaty of friendship or alliance; 
(2) a deditio or unconditional surrender (in this case the lives and property of the 
enemy were generally spared) ; (3) by occupatio or conquest and appropriation of 
the enem3r's territory, or a considerable part thereof. For the formula of deditio, 
see Livy, I, 38. On the significance of deditio^ see Polyb. XX, g ; XXI, 3, and 
XXXVI, 4. For terms imposed upon the iEtolians, see Polyb. XXI, 32 ; and Livy, 
XXXVIII, IX. 



44 ESSENTIALS OF INTERNATIONAL PUBUC LAW 

magistrates. Although it included some rules or principles of 
International Public Law (as, e.g. the inviolability of ambassa« 
dors), it was wholly different in origin, nature, and subject 
matter. It originated in the jurisdiction of the prcetor pere- 
grinus over foreigners (including Latins and Italians) and in 
relations between Romans and foreigners in Rome and Italy. It 
related to such matters as verbal contracts, partnerships, loans 
of money, acquisition by delivery and alluvium, capture and war, 
rights over slaves, rights of self-defense, etc. Some of its 
rules, as, for example, those relating to the law of alluvium, the 
right of occupation of res nullius, and the absolute ownership of 
land by the Roman dominus, were directly appropriated by Grotius 
and the other foimders of Intemationsd Law, and later applied 
to international practice. The jus gentium of the Romans may 
thus be regarded as the source of much of the modem law of 
occupation and territorial sovereignty or jurisdiction.'^ In the 
minds of the later Roman jurists, who were strongly impregnated 
with the doctrines of Stoic philosophy, its more general principles 
were practically identified as Laws of Nature. 

But the Roman jus gentium performed a still more important 
function in the history of international jurisprudence. In 
common with the Canon Law and the Civil Law (into which its 
more positive rules were incorporated) , it greatly influenced the 
legal conceptions of the Middle Ages, and slowly prepared the way 
'for that " reign of law " and order which is perhaps the most 
essential condition of a higher civilization, and which is being 
gradually extended to international relations. 

39. The " Dark Ages." — As a result of the decline of the 
Roman Empire in the course of the fourth and flfth centuries 
A.D., due to internal decay and the irruptions of the barbarians, the 
western world relapsed into that barbarism from which it slowly 
emerged after the eleventh century. It has been said that 
" International Law reached its nadir in the West " ^ at this 
period during the so-called " Dark Ages " between the final 
disappearance of the Western Empire in 476 and the coronation 
of Charlemagne as Emperor of the West by Pope Leo III in 

^ For references on tbe jus geniiuMf see Bibliography at the end of thia 
chapter. 

•* Walker, History of the Law of Nations, p. 64. 



THE HISTORY OF INTERNATIONAL RELATIONS 45 

800 A.D. In spite of the pacific teachings of Christ and the 
early Fathers of the Church, '* the history of the wars of Clovis, 
the hero of the orthodox clergy, is the tale of savage murder and 
the most hateful treachery."^' Some traditions of a higher 
civilization were, however, preserved at Byzantium, and also 
among the Mohammedan Arabs or Saracens, whose interna- 
tional practice contrasts very favorably with that of the bar* 
barian Christians of Western Europe.^ 

40. The Age of Feudalism. — The Age of Feudalism, which 
characterized the civilization of Western Europe from the ninth 
to the fifteenth centiuies, was a period of organized anarchy and 
private warfare or regulated violence. Society was divided into 
feudal groups, of which the basis was the fief, — usually a grant 
of land by the lord to one of his vassals. With the social and 
political relations within these groups, we need not here con- 
cern ourselves. Suffice it to say that feudalism was essentially 
a highly complicated system of land tenure based on military, 
personal, or economic service. It was a form of social and 
political organization of which the lord, vassals and other tenants 
(villeins, serfs, etc.) constituted the military and political units, 
the lord or landowner exercising suzerain or quasi-sovereign func- 
tions based on territorial rights — an idea which played a highly 
important part in the development of the science of International 
Law.^ 

Interfeudal relations were of the loosest kind. In spite of 
legal forms and customary law, they were controlled by brute 
force or regulated violence. The wager of battle was a recog- 
nized form of judicial trial, and private warfare appears to have 
been the rule rather than the exception.^^ " War in all its forms 

* Walker, History of the Lam 0/ Nations, p. 65. 

'^ On the international practice of the Saracens, see Bordweli, Law of War, 
12-14 ; Syed H. R. Abdul Majid, in 28 L. Q. R. (igi2), 89 Q. ; and Walker, History, 
45» 57> 5^1 luid 66. Cf. Nys, Etudes, 1, 46-74, and Origines, 209 f. 

^ See espedally Esmein, Cours iUmentaire d*histoire du droit franqais (1901), 
175-184. Trans, in Munro and Sellery, Mediteoal Civilization (enlarged ed., 
1907), 159-167. 

^ Private warfare was regulated in the course of the twelfth, thirteenth, and 
fourteenth centuries. It was usually preceded by a challenge, and terminated by a 
truce, peace, or promise to keep the peace by one of the adversaries. As a rule, the 
right of private warfare was limited to noblemen. As an old adage expressed it, 
"Only a gentleman may engage in warfare." In any case, ecclesiastics, women, 



46 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

may be said to have been the law of the feudal world." It 
'' raged not only between suzerains and vassals of the same fief, 
but also in the bosom of all the feudal families."^ The attitude 
of the feudal lord toward trade and the foreigner is shown by 
his numerous exactions, such as tolls, the claim of a right to the 
property of the shipwrecked (droit de naufrage), and his claim 
to inherit the property of the foreigner (droU d^aubaine)?^ 

41. Influence of the Mediaeval Church. — But there were 
certain unifying, formative, and civilizing influences at work even 
in Western Europe during the Middle Ages. These were, first 
and foremost, the Catholic Church, as represented by the Roman 
Papacy. Though mainly intent upon its own aggrandizement 
and the salvation of the individual soul from torment in another 
world, the mediaeval Church finally awoke to some sense of 
its humanitarian and international mission, and made efforts to 
establish peace by means of the Truce of God and the Peace of 
God in the eleventh century.^* 

These attempts were, however, only partially successful. 
More effective were such institutions as the Quarantaine le Roy 
(an enforced lapse of forty days between the outbreak of a quarrel 

pilgrims, and minors were usually exempt from hostilities. In France, it was pro- 
hibited in 1361 , but was not suppressed until Louis XI broke the power of feudalism 
toward the close of the fifteenth century. In Germany, Faustrechl (fist-right) con- 
tinued up to the middle of the sixteenth century. On private wariare in the Middle 
Ages, see especially Luchaire, Manuel , 228-234; Nys, OrigineSy ch. 5; and Du 
Cange, Des guerres priv6s (1838), cited by Bordwell, 15. 

^ See the translation from Luchaire, in Munro and Sdlery, 1 71-187. The cita- 
tion is on p. 177. 

'** Of course there were many exceptions to this rule. In England, e.g. many 
statutes were passed for the protection of the foreign merchant. Walker, History ^ 
120-121. 

^* The movement for a "Truce of God," which set aside certain days in the week 
and seasons of the year for the practice of private warfare, originated in Aquitaine 
at the close of the tenth century, spread to neighboring French dioceses, and cul- 
minated in the Council of Clermont in 1095. But this movement failed to accom- 
plish its purpose. 

In the second half of the eleventh century, the Church made a systematic attempt 
to establish the " Peace of God." Peace Leagues or Associations, with regular stat- 
utes, treasury, and magistrates, were established in each diocese under the direc- 
tion of the bishop, who did not hesitate to use force, if excommunication failed. 
Violators of the peace were brought before the "judges of the Peace," and if 
found necessary, punished by an " army of the Peace." Even these efforts were 
only partially successful. See Luchaire, in Munro and Sellery, 183-184. 

For texts of the Truces of God, see University of Pa. Trans, and Reprints , 1, 8-12 ; 
and Henderson, Select Documents^ 208-211. 



THE HISTORY OF INTERNATIONAL RELATIONS 47 

and the opening of hostilities) in France, the King's Peace 
in England, and the various Landesfrieden in Germany. Most 
effective of all was the gradual substitution of royal for feudal 
justice. 

42. Common Blementsin the Civilization of Feudal Europe. — 
Yet in spite of its reactionary and anarchical tendencies, feudal 
Europe contained elements which were favorable to the develop- 
ment of a higher civilization based on the idea of a brotherhood 
of nations. Throughout Christendom, there were common re- 
ligious beliefs and forms of worship, common customs and 
standards of living amongst those with the same social status, 
a language (Latin) common to the educated classes, great Church 
councils representing various races and nationalities, trade, 
pUgrimages, and intercourse of various sorts resulting in the 
interchange of ideas as well as of material goods, and finally the 
common hatred of the infidel and a general desire to regain 
possession of the Holy Sepulchre which culminated in the Cru- 
sades. 

43. The Papacy and Empire. — Although important unifying 
or organizing and civilizing influences, it cannot successfully be 
maintained that either the Mediaeval Papacy or the Holy Roman 
(Germanic) Empire exerted strong direct influence upon the 
amelioration of warfare or the development of International 
Law. True it is that the Papacy and Empire of the later Middle 
Ages were great international forces (although often in conflict 
with each other), and that the Popes and, to a much less 
degree, the Emperors frequently acted as arbitrators and media- 
tors between kings and princes. But their power rested mainly 
on a theoretical and sentimental or religious basis, and declined 
rapidly after the middle of the thirteentb century.'* 

44. Arbitration during the Middle Ages. — Arbitration was 
very .conmion in the Middle Ages, but such was the almost 

** The pretensions of both Papacy and Empire at the height of their power went 
far beyond mere mediation and arbitration. Their daims amounted to an assertion 
of universal dominion and often resulted in actual intervention. These claims were 
usually admitted in theory, but denied in practice. 

A serious obstacle to the efficacy of the Papacy as an arbitrator or mediator was 
the doctrine that "no faith need be kept with heretics/' and the assertion of its 
right to break treaties and annul oaths "contrary to the interests of the Church." 
See an interesting article by White, in 95 Atlantic Monthly, 107 ff. 



48 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

universal reign of anarchy and violence that it cannot be said to 
have very materially mitigated the rule of warfare as the normal 
condition of that imhappy time. Feudalism was in so far 
favorable to arbitration as to predispose vassals to accept their 
lords as judges, and it accustomed them to the idea of arbitration. 
Kings, bishops, eminent jurists, and even cities were also chosen 
ss arbitrators during the Middle Ages. There are said to have 
been no less than one hundred instances of arbitration in Italy 
alone in the course of the thirteenth* century. Arbitration de- 
clined during the fourteenth and fifteenth centuries, and almost 
disappeared from international usage during the seventeenth and 
eighteenth." 

45. The Influence of Roman Law. — More important than the 
direct influence of the Empire, or even than that of the mediaeval 
Church, in the history of the growth of International Law were 
the indirect influences resulting from the revived study of the 
Roman Civil Law by the jurists of the twelfth century, the publi- 
cation of the famous Decretum of Gratian in 1144, and the codi- 
fication of the Canon Law modeled on the Carpus Juris Civilis by 
Gregory IX in 1 234. The systematic study and application of the 
principles of the Roman Law furnished a necessary foundation for 
the later growth of the royal power and the development of an ade- 
quate and enlightened system of international jurisprudence.^* 
This study bore fruit later in many a law, custom, decision, 
pamphlet, monograph, and treatise. 

46. Effect of the Crusades. — Perhaps the most important 
single influence of the later Middle Ages upon the development of 
international relations was that of the Crusades of the twelfth 
and thirteenth centuries (1096-1291).^* Though attended with 
frightful waste and misery, they enlisted the zeal of Christians 

"" See especially the historical note in 5 Moore, History of Arbitration^ App. Ill, 
4825 Q. ; and Nys, Les originesj ch. 4. 

"^ On the influence of the Roman Law upon the formation of International Law, 
see especially Maine, Ancient Law (Pollock's ed.), 92 ff. and note H in Appendix ; 
Jbid.fint, Law, 20, 26-29; Wheaton, History , etc., 29 ff. ; Calvo, 12-13; ^^^ for 
further references see Bibliographies on jus gentium and jus naturale^ infra f pp. 54- 
55 and 91. 

^ Chi the effects of the Crusades, see especially : Adams, Civilization of the Middle 
Ages, 270 ff. ; Chauveau, Introduction, 135 ff. ; 4 Milman, Latin Christianity, 
Bk. VII, ch. 6 ; B6mont and Monod, Mediceoal Europe, ch. 22 ; Emerton, Medumil 
Europe, 388-397 ; i Hill, History, 368 ff. ; Munro and Scllery, Medueval CivUisa- 
tion, 253-256 ; Walker, History, 87 ff. 



THE HISTORY OF INTERNATIONAL RELATIONS 49 

of various nationalities. They could not therefore fail to stimu- 
late trade and the interchange of ideas, arouse a keener sense 
of common interests, and awaken a deeper consciousness of 
the unity of Christendom. They also prepared the way for 
the destruction of feudalism by weakening the resources of the 
nobility — a condition from which the free cities and kings were 
not slow to profit. 

47. Influence of Chivalry. — The influence of chivalry upon 
the amelioration of warfare has probably been exaggerated. Al- 
though it imdoubtedly tended somewhat to soften manners and 
humanize the conduct of the nobles during the later Middle Ages, 
it is an open question whether its tendency was not rather to 
increase than to mitigate the barbarities of mediaeval warfare, 
which often rivaled, if indeed they did not sometimes exceed, 
those of the ancient Orient.* The obligation of chivalry extended 
only to equals, and the desire for ransom added the motive of 
greed to the lust for combat and the exerdse of brutal passions." 

"" On the barbarities of mediaeval warfare, see Nys, Origines^ ch. 11 ; Walker, 
Histdry, 63 ff. ; Hosack, History of ike Law 0] Nations , chs. 2-4; Ward, Enquiry, 
etc., I, chs. 8-9, and II, ch. 14. 

Nys {Origines, p. 188) gives the following summary of the character of medieval 
warfare: "In the Middle Ages war bears the stamp of an indescribable cruelty; 
adversaries injure each other as much as possible ; the annihilation of the enemy is 
the final end of hostilities. Hence, unheard-of acts of barbarity ; the use of poi- 
soned weapons ; the mutilation of prisoners, devastation, the sack and destruction of 
towns ; recourse to treason and perfidy. We are unable to furnish a complete pic* 
ture of the atrocities committed." 

The Church made some slight efforts to mitigate the horrors of warfare, as, e.g. 
its prohibition of the use of the crossbow and of projectiles hurled from machines, 
but these efforts were unsuccessful. It also condenmed the enslavement of Chris- 
tian prisoners. Although prisoners were often massacred and sometimes enslaved, 
the Church deserves the gratitude of mankind for its crusade against slavery. 

Prisoners of note were generally ransomed, sometimes exchanged, and in a few 
cases released on parole. In the latter case hostages were usually given. 

"^ The following passage from a Christian historian descriptive of the capture 
of Jerusalem, which was taken by storm on July 15, 1099, may serve as an illustra- 
tion of the unrestrained brutality of the Crusaders when their fierce and unbridled 
passions were aroused : "No barbarian, no infidel, no Saracen, ever perpetrated such 
wanton and cold-blooded atrocities of cruelty as the wearers of the cross of Christ 
on the capture of that city. Murder was mercy, rape tenderness, simple plunder 
the mere assertion of the conqueror's right. Children were seized by their legs, some 
of them were plucked from thmr mother's breasts and dashed against the walls or 
whirled from the battlements. Others were obliged to leap from the walls ; some 
tortured, roasted by slow fires. They ripped up prisoners to see if they had swal- 
lowed gold. Of 70,000 Saracens there were not left enough to bury the dead ; poor 



50 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

48. Influence of Mediaeval Commerce. — Another important 
influence upon the development of the Law of Nations was that 
of mediaeval commerce, which centered in certain Italian cities ^ 
of the Mediterranean, and was greatly stimulated by the Crusades. 
It flourished in spite of war, piracy, and the opposition of the 
Church, and was later extended to the north by way of the 
Atlantic as well as along overland routes. The desire to 
protect and extend mediaeval commerce led to the formation of 
leagues of dties. The most important of these confederacies 
was the Hanseatic League (i 250-1450) which, at the time of its 
greatest extent, ** included more than m'nety dties of the Baltic 
and North Sea regions, both seaports and inland towns." " 

49. The Discoyeiy of America. — The necessity for opening up 
new trade routes to India, which resulted from the Turkish con- 
quests of the fifteenth century (more particularly the capture of 
Constantinople in 1453), led to the discovery of America and the 
drcimmavigation of Africa and the globe. These, in turn, trans- 
ferred the center of greatest commerdal activity from the Medi- 
terranean to the Atlantic, and greatly extended the drde of inter- 
national and commerdal relations. 

50. The Consolato del Mare. — It is to mediaeval commerce 
that we owe those collections of maritime law which have exer- 
dsed such a great influence upon the subsequent development of 
this branch of international jurisprudence. By far the most im- 
portant of these was the Consolato dd Mare,^ a private coUec- 

Christians were hired to perform the office. Every one surprised in the Temple was 
slaughtered, till the reek from the dead bodies drove away the slayers. The Jews 
were buried alive in their synagogues." 4 Milman, History of Latin Christianity, 
p. 37 (American ed., 1881). Cited by Hosack, History of the Law of Nations, 
p. 68. Hosack adds that the brutality of the Crusaders has often been contrasted 
with the remarkable generosity with which Saladin, the renowned Sultan of Eygpt, 
treated the captive Christians when he retook Jerusalem in 11 87. 

** The most important of these were Amalfi, Venice, Pisa, and Genoa. 

** Harding, Essentials in Medictval and Modem History, p. 187. See map on 
pp. 184-185, showing extent of medieval commerce, trade routes, and the Hansa 
towns and settlements. The objects of the League were common defense, the acqui- 
sition, maintenance, and security of trade ; and it provided for the settlement of 
disputes between members by arbitration. 

"* On the Consolato del Mare, see especially Pardessus, Us et coutumes de la mer, 
I, 21-34, 206-209, and II, 1-368 or ch. 12. For English translations of the most 
famous chapters of the Consolato, see Wheaton, History, 63-65 ; and Manning, 280- 
283. Both are copies of Robinson's translation of the Prize Chapters of the Can- 



THE HISTORY OF INTERNATIONAL RELATIONS 51 

tion of rules derived from maritime practice in the Mediterranean, 
which was published in Barcelona, Spain, in 1494.^ 

These rules showed a remarkable liberality toward friends or 
neutrals. They made ownership of the ship and goods the test of 
liability to forfeiture, and laid down the principle that a friend's 
goods found on board an enemy ship were to be restored to the 
owner on payment of the freight. It was even provided that the 
owner of the cargo might purchase the vessel at a suitable price. 
On the other hand, enemy goods found on a neutral vessel were 
subject to confiscation, although even in this case the vessel, 
which might be compelled to carry the cargo to a place of safety, 
was restored to its owner, who received the same freight that he 
would have received if the goods had been carried to their 
original destination. 

51. The MediaBval Origin of the Modem Consulate. — The 
interests of mediaeval commerce led to the establishment of 
consulates. At least as early as the twelfth century, naval 
and merchant consuls (canstdes marinafiorum ei mercatorum) , 
chosen by the seamen or merchants themselves, settled disputes 
among their countrymen and represented the interests of the 
seamen and merchants of leading Italian cities in Mohammedan 
countries. These officials (also called consul-judges) were, at 
first, generally confined to Oriental countries, where (except in 
Japan) they still exercise dvil and criminal jurisdiction over 
nationals of their own country. During the thirteenth and 
fourteenth centuries this institution gradually spread to the 
West ; ^ but, owing to the rise of permanent embassies and the 

soiato del Mare, in Collectanea Marilima, No. 5. See also 3 Twiss, Black Book of 
ike AdmiraUyf 539 and 611. 

Other important medieva] collections or codes of maritime law were : (i) The 
so-called Amal/Uan Tables, which appear to date from the eleventh century. (2) 
The Laws of Oleron for Western Europe, which seem to have been completed in the 
latter part of the twelfth century. (3) The Laws of Wisby, dating from about 1 288, 
for the Baltic Nations. (4) The Maritime Law of the Hanseatic League, completed 
in 1614. (5) The so-called Rhodian Sea-Law of the Roman Empire and the early 
Middle Ages, which, however, is generally regarded as apocryphal. It was first 
published in 1561, though Ashburner (in The Rhodian Sea-Law, 1909, p. czii) pre- 
sents some strong arguments in favor of his opinion that it was ^'probably put to- 
gether by a private hand between a.d. 600 and A.o. 800." 

•• Nys, Origines, p. 232. But its actual development dates from a much earlier 
period, probably the fourteenth century. It was applied by the sea consuls of 
Barcelona who existed as early as 1 279. 

•• In the North, i.e. among members of the Hanseatic League, the consular judges 



52 ESSENTIALS OF INTERNATIONAL PUBUC LAW 

devdopment of the doctrine of territorial jiuisdictioii, the extra- 
territorial powers of the consuls greatly declined in the course ol 
the sixteenth century. 

52. The Rise of tbe Modem Bnropean States-system. — The 
mediaeval consuls were, however, in no proper sense agents or 
organs of internationalism. Although Christendom was aroused 
to some sense of its community of interests by the Crusades, 
mediaeval man still lived in a world largely disordered and un- 
organized, while dreaming of '' kingdom come " or the universal 
rule of Pope or Emperor. The latter dream was diq>elled through 
the mighty forces set in motion by the Renaissance and the 
Reformation ; and the evils of disorder and disorganization were 
largely overcome through the rise of the modem States-ssrstem 
of Europe, which was based on the ideas of the absolute territorial 
sovereignty of princes, the legal equality of States, and the 
maintenance of a balance of power or equilibrium of forces 
between them. 

The main agents in this reorganization of Europe were the cities 
of Italy, the d3aiasties of France, England, and Spain (more par- 
ticularly Louis XI, Henry VII, and Ferdinand of Aragon),*' and 
the system of resident embassies which was established first 
in Italy" (from the thirteenth to the fifteenth centuries), and later 

were known as aldermen. Like the consub of the South, they represented the power- 
ful merchant guilds or corporations rather than the governments. We should re- 
member in this connection that the Middle Ages were still dominated by the idea 
of personality of law, and that it was entirely natural that colonies or coiiwrations 
of foreigners residing in a certain quarter of a mediaeval city should be permitted 
to administer their own law, and that they should especially demand these privi- 
leges in the Orient. 

On the Mediaval Origin of the Consulate^ see Bonfik (Fauchille), Nos. 734-741 ; 

1 Halleck (Baker's 3d ed.), 369-370 and note; *Holtzendorff/in i Handbuck, § 77; a 
Martens, TraiU, § 18; Hautefeuille, Histoire, 95 ff.; 2 M6rignhac, Traiti, 314 ff. ; 

2 Nys, Droit int., 396-400; i Oppenheim, § 419; *4 Pradier-Fod6r6, TraiU, Nos. 
2036-2043. 

^ These '' three magicians" (as Bacon called them), whose reigns fall within the 
latter half of the fifteenth century, all contributed powerfully to the development 
of that royal power which resulted in the destruction of feudalism as a political 
force, the unification and nationalization of the State, and the establishment of 
the modem States-system of Europe. The main "organizers" of European di- 
plomacy appear to have been Ferdinand of Aragon, Louis XII, and the Emperor 
Maximilian at the close of the fifteenth century. See 2 Hill, History, p. 309. 

•• The researches of Nys (see esp)ecially his Origines, ch. 14) and others have ren- 
dered almost worthless earlier accounts of the origin of European diplomacy. The 
system of permanent resident embassies was unknown to antiquity. It originated 



THE mSTORY OF INTERNATIONAL RELATIONS 53 

(during the sixteenth and seventeenth centuries) in Western 
Europe. The idea of the balance of power and equilibrium of 
forces also found its first modem application in the interstate 
relations of the leading Italian dties in the fifteenth century," 
and was later aj^lied in the larger field of general European 
politics.*^ 

53. The Peace of Westphalia. — The actual existence of a 
secular community of States in Western Europe was first fully 
revealed to the World by the Treaties of Westphalia — the 
work of the Congress of Catholic and Protestant States which 
met at Miinster and Osnabriick in 1644-1648.*^ This Peace, 

in Italy (Venice taking the lead) in the thirteenth century. In the fifteenth cen- 
tury the Italian cities had permanent representatives in Spain, Germany, France, 
and England. These States maintained similar relations with one another in the 
sixteenth century, but the system of resident embassies cannot be said to have been 
generally established throughout Europe until the age of Richelieu, Mazarin, and 
Louis XIV in the seventeenth century. The terms ** diplomatist " and *' diplomacy " 
did not come into general use, however, until the end of the eighteenth century. 

On the origin of European Diphmacy, see especially, in addition to Nys (cited 
above), Baschet, La diplofmUie vHiitienne; Ibid,, Les archives de Venise (1870); 
Bonfils (Fauchille), No. 656; i Calvo, § 392; 2 Fiore, No. 11 77; i Flassan, His- 
toire (181 1), passim; * Hill, History of European Diplomacy, vols. I and II, passim, 
more particularly I, ch. 8, ad fin., and II, chs. 2, 4, and 7 ; Holtzendorff, in i Hand- 
buck, § 83 ; Krauske, Die Entwickdung der sidndigen Diplomaiie (1885) ; i Maulde- 
la-Claviere, La diplomatie au temps de Machiavel; 1 Oppenheim, §§ 358-359; 
•3 Pradier-Fod6r6, Traiti, Nos. 1 231-1236; Ibid., i Corps diplomatique, 203-214; 

1 Rivier, 431. 

"* Le, Venice, Florence, Milan, Naples, and the Papacy. It was especially 
applied by Lorenzo de Medici. Italy also seems to furnish us with the first 
example of the modem State, viz. the centralized administration of Frederick II 
in Southern Italy and Sicily in the thirteenth century. Burckhardt, The Civiliza- 
tion of the Renaissance (Eng. trans, by Middlemore), p. 5. Cited by Nys, Origines, 
p. 166. 

^ Evidences of the application of this idea may be found in the policy of England 
and France during the sixteenth century, but the balance of power can hardly be 
said to have been established as a European system prior to the latter part of the 
seventeenth century. It was first formally and officially recognized by the Peace of 
Utrecht in 1713. 

On the origin of the system of " European Equilibrium," see Nys, Origines, ch. 8 ; 

2 Hill, History of European Diplomacy, passim, particularly, 158, 238, 294 S. 

*^ In the negotiations at Mttnster and Osnabriick all the leading European powers 
were represented, except England, Poland, Muscovy, and Turkey, viz. the Papacy, 
the Gennan Empire, France, Spain, Sweden, Venice, Denmark, Portugal, and the 
States General of Holland. The various German States and the Dukes of Tuscany, 
Savoy, and Mantua also sent delegates. The Swiss cantons were represented 
through the good offices of the French and included in the general pacification. The 
independence of Holland was also recognized. England and Poland were included 



54 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

which marks the dose of the Thirty Years' War and the es- 
tablishment of the Modem European States-system on a solid 
basis, recognized the equality of the Catholic and Lutheran 
Confessions in Germany and the independence and legal equality 
of the States (including the 355 sovereignties of Germany) of 
Western Christendom, whether Catholic or Protestant, monar- 
chical or republican.** 

BIBUOGRAPHT 

Intematioiial Law of Antiquity. — i Alcorta, Cawrs^ ch. 6, sec i ; 
Bender, AtUikes Vdlkerrecht (igox); Busolt, in Midler's Handbuch, IV, i, 
§§ 54~~76; Chauveau, Introduction (1891), § 12; Cybichowski, Das aniike 
Vdlkerrecht (1907) ; Egger, Les traitis publics chez Us grecs et les remains 
(1866) ; * Greenidge, Handbook of Greek Const, History y ch. 3, 2 ; *Ibid,, 
Roman Public Life, ch. 7; Hemiann, Griechische Antiquitdten §§ 9^14; 

* HoltzendorfF, in i Handbuch (1885), §§ 40-64 ; * Laurent, &tudes sur 
rkumaniU (1879-1880), Vols. I, II, and III ; Leseur, Introduction, §§ 33-38 ; 
MfiUer-Jochmus, GeschichU des Vdlkerrechts im Altcrtum (1848) ; * Phil- 
lipson, Int, Law and Customs of Ancient Greece and Rome, in 2 vols. 
(1911); Scala, Die StaatsvertrUge des Altertums (1898); 2 Schoemann, 
Griechische AUertUmery 1-123 ; * i Walker, History of the Law of Nations 
(1899), 20-64; Wheaton, History of the Law of Nations (1845), Introduction. 

International Law of the Middle Ages. — i Alcorta, CourSy ch. 6, 
sec. 2; Chauveau, Introduction, § 13; Hosack, The Rise and Growth of 
the Law of Nations (1882), chs. 2-7 ; *Holtzendorff, in i Handbuch, §§ 65-84 ; 

* Laurent, 6tudes, Vob. IV-X, passim; Leseur, Introduction, §§38-54; 

* Nys, Les origines de droit int, (1894) ; Ibid,, Audes dc droit int, (1896 and 
1901), in 2 vob., passim; * i Walker, History, 79-201 ; Ward, Enquiry into 
the Foundation and History of the Law of Nations (1795), in 2 vols, (still 
useful). 

The historical chapters in treatises of International Law are for the most 
part either slight or practically worthless in the light of our present knowl- 
edge. Among the exceptions are Bonfils, Calvo, Despagnet, Martens, Nys, 
Oppenheim, and Wilson and Tucker (the best of the brief sketches). 

Jus Gentium. — i Austin (Campbell's ed.), §§109-110 and Vol. II, 
Lect. 31, §§ 791-825; ♦Bryce, Studies, etc, 570-586, 753-754; Carlyle, 
Mediaval Pol, Tlieory (see index) ; * Clark, Practical Jurisprudence, ch. 14 ; 

in the Treaty of Osnabrilck as allies both of the Emperor and of Sweden. These 
details are taken from Bernard's interesting essay on "The Congress of Westphalia," 
in his Lectures on Diplomacy, II, ch. 7, ad fin. 

** Of these 355 German States whose sovereignty was practically (although not 
theoretically) recognized by the Peace of Westphalia, "150 were secular States 
governed by hereditary monarchs (Electors, Dukes, Landgraves, and the like), 62 
were free City-states, and 1 23 were ecclesiastical States governed by Archbishops 
and other Church dignitaries.'' i Oppenheim, p. 60. 



THE HISTORY OF INTERNATIONAL RELATIONS 55 

Dunning, PdUical Theories^ Ancient and Mediitoal; Ibid,, From Luther U 
Montesquieu, passim; Holland, Jurisprudence (loth ed. in 1906), 34-35; 
Holtzendorff, in i Handbuch, § 64 ; Karlowa, Rdm, Rechtsgesch., § 59, pp. 
451-458 ; * Maine, Ancient Law (Pollock's ed.), 44 ff. and Pollock's note in 
Appendix, 396 ff. ; Ihid., Int, Law, 27-29 ; i F. de Martens, 84 ff. ; 3 Momm- 
sen, Rdm, Siaatsrecki, 603-606 and notes ; Muirhead, Private Law of Rome, 
240; * Art. onytf5 gentium by Professor Nettleship, in 13 Journal of Phi- 
lology, No. 26 ; I Phillipson, op, ci^., ch. 3 ; * Roby, Roman Private Law, 5-6, 
especially note 2 on p. 5 ; Salkowsky, Roman Private Law (Whitefield's trans.), 
lOf 30"3i ; I Savigny, System, § 23 ; * Sohm, Institutes, §§ 12-13 ; 2 Tay- 
lor, The Medueoal Mind, ch. 33; Voigt, Rdm. Rechtsgesch,, § 15, pp. 152- 
162; *Ibid., Jus naturale und jus gentium der Rlhuer (1856 in 4 vols.), 
passim; * Walker, History, §§ 28-29, 85 et passim; Westlake, Chapters, 
18 ff.; Wheaton, History, 24 ff.; Wilson, The State, Nos. 262 ff.; 
WiUoughby, Political Theories, 252-267. 



CHAPTER IV 

mSTORT OF nTTBRNATIONAL LAW SINCE THE PEACE OP 

WESTPHALIA 

54. The Main Factors in the Growth of the Science of Interna- 
tional Law. — The treaties of Miinster and Osnabnick gave to 
Europe a sort of international constitution which remained the 
basis of its public law down to the French Revolution. But 
it would be a serious error to assume that the International Com- 
munity of States as revealed to the world by the Peace of West- 
phalia implied the recognition of the science of International Law 
as imderstood and practiced by the Society of Nations at the 
present time. The science of International Law as it exists to-day 
is a result of slow historical growth and is the product of two main 
factors, viz. certain theories or principles on the one hand, and 
international practice or custom on the other. The relative 
value and influence of the contributions of each of these factors 
is so difficult to determine that they have never been thoroughly 
sifted or separated — a task left for the future historians of 
International Law. 

55. The Importance of Jurists and Publicists. — It is clear^ 
however, that during its formative period International Law was 
mainly developed by great thinkers and jurists, who were forced 
to rely upon the weight of general ideas or theoretical considera- 
tions, rather than upon any satisfactory body of accumulated 
custom, if they desired to ameliorate conditions or improve 
international relations. The fundamental principles of the 
science once firmly established and recognized in international 
practice, there was less need for theoretical discussion. It 
then became the main fimction of the jurist and publicist to 
apply and interpret the law in conformity with the best and most 
authoritative precedents or usages. 

56. Grotius the Founder of the Science of International Law. 
— The founder of the Science of International Law was Hugo 

56 



HISTORY OF INTERNATIONAL LAW 57 

-Giotius, whose main work, entitied De jure belli ac pacts, pub- 
lished in 1625 during the midst of the horrors of the Thirty 
Years' War, marks an epoch in the history of civilization as well 
as of International Law. Although it was based largely upon the 
labors of his predecessors/ to whom somewhat scant recogni- 
tion is given by him, Grotius deserves his title of ** Father of 
International Law ' ' from the fact that his was the only work 
in the seventeenth century which obtained wide circulation 
and general recognition.^ This was because it answered the 
needs of the time, and was the fullest, most attractive, systematic, 
and scholarly exposition of the subject hitherto attempted. 
Grotius brought to his work great learning, enthusiasm, ex- 
perience, and a passion for justice which won for him the hearts 
as well as the heads of his contemporaries and of posterity. 

57. His Work based on flie Jus Naturde. — Like his predeces- 
sors and many of his successors, Grotius started from the idea of a 
imiversal and immutable Law of Nature {jus naturale) based upon 
right reason and hiunan sociality — a philosophical conception 
derived from the Stoic philosophers of antiquity, which has 
dominated Ethics and Jurisprudence until recent times. He 
claimed for the Law of Nations the authority and sanction of 
this Law of Nature, a doctrine denied by no one in his day,' 
thus giving it an apparently solid, binding, and rational character 
which few cared to dispute. Moreover, he fortified his position 

^ For references and a brief sketch of the " Forerunners of Grotius/' see note 
at the end of this chapter. 

* This is shown by the facts that at least forty-five Latin editions of his book 
were issued prior to 1748 and that it had been translated into the leading modem 
languages before the close of the seventeenth century. See Rivier, in i Holtzen- 
dorff's Handbuchf § 88, for list of editions. Grotius' book made such a great im- 
pression upon Gustavus Adolphus that he is said to have slept with it under his 
pillow during his campaigns in Germany. 

Grotius was bom at Delft, Holland, in 1583. As a child he was a prodigy, writ- 
ing Latin verses at nine years of age. He entered the University of Leyden when 
twelve years old, and took his degree of Doctor of Laws at Orleans, France, at the 
age of fifteen. As a result of religious controversy, he was sentenced to imprison- 
ment for life in 16x9; but in 162 1 he succeeded in escaping from prison and lived 
for ten years in Paris, where he composed and published his great work in 1623- 
1625. In 1634 he was appointed Swedish minister to France — a position which he 
held until the year of his death in 1645. Grotius was poet, philologist, philosopher, 
historian, and mathematician, as well as diplomatist, lawyer, and jurist. 

' For references on the jus naturaU^ see Bibliography at the end of this 
chapter. 



S8 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

by an attractive style and a marvelous display of erudition or 
citation of authorities from men of all ages and coimtries (in- 
cluding the Bible, poets, orators, philosophers, and historians, as 
well as jurists) which went far to enhance his authority in the 
eyes of his contemporaries. He also borrowed largely from 
the Roman jus gentium the leading principles of which had been 
practically identified with the jus naturale. This "written 
reason," as the Roman Civil Law has been caDed, not only 
commanded the highest respect from its origin, but was sanc- 
tioned by general agreement, at least on the part of the educated 
classes ; and Grotius thus relied upon positive law (jus volun- 
tariutn) as determined by general consent, as well as upon the 
Law of Nature, to give effect to the principles and usages of the 
Law of Nations. 

58. The Fundamental Principles underlying the Grotian 
System. — Many of the principles laid down and usages sanc- 
tioned by Grotius are obsolete ; others are found only in germ 
or are incompletely developed; many present-day laws and 
customs (as e,g, those making up the modem Law of Neutrality) 
were practically overlooked or received scant recognition from 
him : but the essential principles underljdng the Grotian System 
remain the fundamental principles of International Law. Such are 
the doctrines of the legal equality and of territorial sovereignty 
or independence of States.* 

These fundamental principles, though not clearly stated by 
Grotius, underlay his system and were fully developed by his 
successors, more especially by Wolff, Vattel, and G. F. de 
Martens. They were the inevitable outcome of the acceptance of 
the dogma of the supreme power or sovereignty of States and 
princes, as defined by Bodin, Grotius, Hobbes, and other politi- 
cal philosophers during the sixteenth and seventeenth centuries.^ 

* The best recent estimates of Grotius' work are by Basdevant (in Les fondateurs 
du droU int., ed. by Pillet); White, in Seven Great Statesmen (1910), 54-110; 
and Walker, Science , etc., ch. 4. 

For a very full analysis of the De jure belli ac pacis, see Walker, History , 
§§ i43~i4S> The best modem translation is by Pradier-Fod6r£ (1867) ; it b pre- 
ceded by a valuable biographical and historical essay. 

' Though differing widely from the latter, both in point of view and details, 
Grotius (lib. I, c. 3, § 7) practically follows Bodin, who defines sovereignty as "su- 
preme power over citizens and subjects, unrestrained by the laws." Dunning, Pa' 
liticdt Theories from Luther to Montesq.y pp. 96 and 181. Bodin's great work, De 



HISTORY OF INTERNATIONAL LAW 59 

It only remained to apply this dogma to the international 
relations of the Commimity of States recognized by the Peace 
of Westphalia. It was soon seen that, if States and princes are 
sovereign and independent, they must also be regarded as equal 
before the law; and that It was necessary *to formulate a doc- 
trine of the fundamental rights and duties of States. 

59. The Successors of Grotius. — The successors of Grotius, 
who wrote during the seventeenth and eighteenth centuries, 
may be divided into three schools — the " Philosophical " or 
Pure Law of Nature School, the " Positivists " or Historical 
School, and the " Eclectics " or " Grotians." 

60. The Pure Law of Nature School. — The Pure Law of 
Nature School, headed by Pufendorf (1632-1694), denied the 
existence of any positive International Law based on custom 
and treaties, and maintained that the Law of Nations is wholly 
a part of the Law of Nature.* Pufendorf occupied the first 
chair which was founded for the study of the Law of Nature 
and Nations at a university (at Heidelberg, Germany, in 1661), 
but his magnum opus on De jure natura et gentium was not 
published until 1672, when he held the position of Professor 
of Jurisprudence at the University of Lund, in Sweden. His 
great service was his insistence upon the supreme importance of 
natural law at a time when customary law based on good usages 
was insufficiently developed.^ 

Pufendorf 's most famous disciple was Thomasius® (1655- 

1628), a German philosopher who published his Fundamenta 

juris naturae et gentium in 1705. Thomasius distinguished 

Republica, was first published in 1576. Grotius has been severely criticized for his 
defense of the patrimonial State and his repudiation of the doctrine of popular 
sovereignty; but these views doubtless served to recommend his opinions to the 
absolute monarchs of his day. 

* Dejure natura ei gentium, II, ch. 3, § 22. On this point Pufendorf followed 
Hobbes {De cive, XIV, 4), who divided Natural Law into ''a Natural Law of men 
and a Natural Law of States/' and maintained that the two were composed of iden- 
tical precepts. In other words, States live in a state of nature in respect to each 
other. But Hobbes and Pufendorf differed widely in their views as to the sociable 
nature of man. Pufendorf, however, adopted Hobbes' imperative view of the 
nature of law. 

' The only part of his work which deals with International Law proper are the 
last five chapters of the eighth book. 

' On Thomasius, see especially White, in Seven Great Statesmen (1910), 113- 
161. 



6o ESSENTIALS OF INTERNATIONAL PUBUC LAW 

between perfect and imperfect duties — a distinction after- 
wards elaborated by Wolff.' Other important " Naturalists " 
of the seventeenth and eighteenth centuries were: Barbe3rrac 
( 1 674-1 744), the famous French translator and commentator of 
the works of Grotius, Pufendorf, and others; the Genevan 
Burlamaqui (i 694-1 748), whose Principes du droit naturel et 
politique was published in 1747 ; Thomas Rutherford, who pub- 
lished his Institutes of Natural Law in 1754; and the French 
diplomatist De Rajmeval (1736-1812), author of the Institu- 
tions de droit de la nature et de gens}^ 

61. The Positive or Historical School. — The Positive or His- 
torical School of international jurists, while not denying the 
existence and validity of the Law of Nature, emphasized the 
importance of custom and treaties as sources of International 
Law. This school may be said to have originated in England, 
where it has also attained its fullest development. One of 
Grotius' predecessors, the Italian Gentilis, who was appointed 
Professor of Civil Law at Oxford in 1588, and whose chief work, 
De jure belli, was published in 1598, may in a sense be said to 
have been the foimder of this school. At least he enriched his 
work with examples drawn from contemporary opinion and 
events — a practice which Grotius condemned — and he pre- 
ferred historical investigation to abstract reasoning and sys- 
tematic exposition. 

Other representatives of this school in England during the 
seventeenth century were: the learned Selden" who, in a 
work entitled Mare clausum (published in 1635), attacked 
Grotius' views on the freedom of the sea as expressed in the 
latter 's Mare liberum (published in 1609) ; Zouche (1590- 
1660), Professor of Civil Law at Oxford and Judge of the Ad- 
miralty Court, who published the first manual of International 
Law in 1650 ; " and Sir Leoline Jenkins, Zouche's successor as 

• Westlake, Chapters, p. 72. 

^^ A belated pure " Naturalist " has even appeared during the latter half of the 
nineteenth century — the Scotch Professor Lorimer. He still defines the Law of 
Nations as the '*law of nature realized in the relations of separate nations" or 
"political communities/' See his InstUutes of the Law of Nations (1883), I, 
pp. I and 19. 

> ^^ In 1640 Selden also recognized the importance of a positive Law of Nations 
in a work on Law of Nature and Nations among the Hebrews. 

" The influence of Zouche in England was very great. He was also the first pub- 



mSTORY OF INTERNATIONAL LAW 6i 

Admiralty Judge, whose opinions on questions of prize law are 
of great importance in the history of International Maritime 
Law." 

The three leading positivists of the eighteenth century were 
the famous Dutch jurist Bynkershoek and the German Pro- 
fessors John Jacob Moser and G. F. de Martens. 

Bynkershoek never wrote a treatise on International Law, 
but he still ranks as one of its leading authorities.^^ Although 
he recognizes reason as an important source of the Law of 
Nations, he relies mainly upon custom as expressed in treaties 
and international practice (including unilateral acts) for actual 
guidance. 

John Jacob Moser (i 701-1785) was the author of innumer- 
able works bearing mainly on International Law,^^ which are 
perfect storehouses of hbtorical facts and precedents. Moser 
was a thoroughgoing positivist, and his attitude toward the 
Law of Nature is one either of indifference or of contempt. 

G. F. de Martens (1756-1821) also published numerous 
works dealing with positive International Law, the most im- 
portant of which was entitled Pricis du droit des gens moderne 
de V Europe, published in 1788. This work, which appeared in 



lidst to use the Xxtmjus inter gentes in the title of his work ; but he was not the in> 
ventor of this phrase, as generally stated. Victoria (see note on p. 89, had 
employed it in the first half of the sixteenth century, and Grotius had made use of the 
phrase 71U inter civitates^ though the latter generally employed the ambiguous term 
jus gentium. This work of Zouche has been recently (191 1) republished and trans- 
lated under the auspices of the Carnegie Institution as Vols. I and tl of Classics 
of Int. Law, edited by J. B. Scott. 

^ It should not be forgotten that Germany also produced several representatives 
of the positive or historical school during the seventeenth century. Of these the 
most important was Rachel, who published two dissertations on De jure naturm 
ei gentium in 1676. 

^^ The fame of Bynkershoek rests upon three books : De dominio maris (1702) ; 
De foro legatorum (17 21); Questiones juris publici (1737). Wheaton (History, 
p. 193) says that Bynkershoek was 'Hhe first writer who has entered into a critical 
and systematic exposition of the Law of Nations on the subject of maritime com- 
merce between neutral and belligerent nations.'' 

" Nys (i Droit int., p. 257) states that, in 1765, Moser had already composed 200 
works and studies. His principal work, entitled Versuck des neusten Europaischen 
Vdlkerreckts in Freidens und Krtegszeiten in ten volumes, was completed in 1780. 
It is said by Wheaton (History, p. 323) to contain "a rich mine of materials." 
For a list of his principal works on International Law, see Wheaton, 324-325 ; and 
Rivier« in i Holtzendorff's Handlmck, § 102. 



62 ESSENTIALS OF INTERNATIONAL PUBUC LAW 

successive editions and has been translated into many lan- 
guages/* has exercised a great influence upon international 
practice and the subsequent development of International Law. 
Martens does not wholly repudiate the Law of Nature, based 
on reason and utility, but he admits it only in default of 
positive rules founded on usage and treaties. As the first sys- 
tematic manual on positive International Law more or less 
adapted to modem needs, it became a model and still enjoys 
considerable reputation. G. F. de Martens is especially clear 
in his exposition of the fundamental rights and duties of States.^^ 

62. The " Eclectics " or " Grotians." — A third school of 
international jurists — the " Eclectics " or " Grotians " — 
occupy a middle groimd between the " Naturalists " and " Posi- 
tivists." The members of this school followed in the footsteps 
of Grotius in preserving the distinction between the Law of 
Nature and the positive or voluntary Law of Nations, based 
on custom or consent; but, imlike their master, they have 
treated both as about equally important. 

The greatest representatives of this school in the eighteenth 
century were the German philosopher Wolff (1679-17 54) and 
his Swiss disciple Vattel (i 714-1767). 

Wolff's greatest work in this field was a treatise on the jus 
natura (i 740-1 748) in eight parts. To this was added a volume 
on the jus gentium in 1 749 and an abridgment of the whole 
entitled InstUuliones juris nature et gentium in 1763. But 
Wolff's highly abstract and mathematical treatment of these 
subjects rendered his works practically unintelligible to those 
who might otherwise have profited by them. 

The task of introducing Wolff's ideas to men of letters, states- 
men, and diplomatists was undertaken by Vattel, the famous 
Swiss publicist, whose influence on the conduct of international 

^* An English translation by Cobbett was published at Philadelphia in 1795* 
The best and most recent edition, with notes by Pinheiro-Ferreira and Verg6,. 
api>eared at Paris in 1864. De Martens also began the celebrated collection of 
treaties which bears his name and which has been continued up to our own time. 
G. F. de Martens must not be confused with his nephew Charles de Martens, the 
author of the Causes c&ibres de droit des gens (1827) and the Guide diplomatique 
(1832), or with the famous Russian jurist and publicist F. de Martens of our own 
day. 

" See his Pr6cis, liv. IV. 



fflSTORY OF INTERNATIONAL LAW 63 

relations is perhaps second only to that of Grotius. Vattel 
tells us in the preface of his Law of Nations ^ that <he had at 
first intended only to " clothe " certain portions of Wolflf's 
system " in a more agreeable dress," but he soon found it neces- 
sary to compose a very different work. He, therefore, con- 
tented himself with " selecting from the work of M. Wolfius 
the best parts, especially the definitions and general principles." 
His book, though by no means an original contribution to the 
subject, is indeed far from being the mere abridgment or 
paraphrase of Wolff's treatise on the jus gentium that it is often 
represented. He accepts Wolff's doctrine of perfect and im- 
perfect obligations, and emphasizes the fimdamental rights 
and duties of States. He also adopts his master's complicated 
and impractical division of positive International Law into the 
voluntary, customary, and conventional Law of Nations;^' but 
he rejects the Wolffian fiction of a World State or civitas maxima 
as a foimdation for the voluntary law of nations. Vattel wrote 
in an attractive style and enriched his work with illustrations 
drawn from the history of his own times." 

63. The Period between 164R-1713. — The period between 
1648 and the Peace of Utrecht (1713) was marked by the aggres- 
sive policy of Louis XIV, resulting in a series of wars and con- 
quests and a disturbance of the balance of power in Europe 
created by the Peace of Westphalia. This in turn led to the 

^ This famous work, which was published in 1758, bears the additional title: 
" Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and 
Sovereigns.'' It has had many editions and translations. The most complete 
and recent edition, with notes variorutHf is that edited by Pradier-Fod£r6 in 1863. 

" In addition to these three classes of positive law, we have of course in the 
Wolffian as in the Grotian system the natural or necessary law which Vattel (Pre- 
liminaries, §§ 6-8} says, " consists in the application of the law of nature to nations." 

^ Though not members of any particular school, the following eighteenth cen- 
tury publicists should receive special mention because of their influence upon the 
development of maritime law, more especially in connection with the Law of Neu- 
trality: the Danish minister Hilbner, whose important treatise entitled De la 
saisie des bdtimetUs neuires (Seizure of Neutral Vessels) was published in 1759; 
the French jurist Valin, whose excellent Commentary upon the Marine Ordinance of 
168 1 and Train des prises (Treatise on Prizes) appeared during 1 760-1 763 ; Heinec- 
cius, who wrote his treatise De navibus in 1721 and Elementa juris naturalis which 
was translated into English in 176^ ; and the Italians Lampredi and Galiani, who 
engaged in a famous controversy on the principles of the Armed Neutrality in the 
latter part of the eighteenth century. On these authors and this controversy, see 
Wheaton, History ^ especially pp. 200, 219-229, and 309-322. 



64 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

formation of the first great European coalition against France 
headed by England in 1688 — a date which also marks the 
beginning of what Seeley ** calls the " Second Hundred Years' 
War " between England and France (1688-1815), which resulted 
in the conquest of the major portion of the French colonies by 
England and the establishment of the maritime supremacy of 
Great Britain. The war of the Spanish Succession (1701-1713) 
ended in the restoration and first formal acknowledgment of 
the balance of power as a fundamental principle of European 
policy. 

During this period (1648-17 13) lip service was rendered to 
the leading principles and usages of the Law of Nature and 
Nations laid down by Grotius and his successors, but its rules 
were often practically ignored. The rights and immunities of 
legations were generally recognized and became fully estab- 
lished ; the doctrine of the freedom of the seas made consider- 
able progress; and fixed rules were laid down regulating such 
matters as the right of visit and search, blockade, and the cap- 
ture of contraband. In respect to the law of maritime capture 
a long backward step was taken. 

The famous French Marine Ordinance of 1681 ** admitted the 
maxim of the Cansolato del Mare that enemy goods in a friend's 
vessel are good prize ; but it denied the rule that the goods of 
a friend found on an enemy ship are free. It even declared that 
neutral vessels carrjdng enemy goods are liable to confiscation, 
thus limiting the lawful commerce of a neutral to his own goods 
carried in his own vessel.^ With the exception of the latter 

*^ Expansion of England , Lect. II, pp. 24 and 29. There was, however, a long 
period of peace, and even of alliance, between England and France during 1713-- 
1740. 

** This ordinance was modeled on earlier ones. The law of France varied at 
different times. On the Marine Ordinance of 168 1 and the maritime law of this 
period, see especially Wheaton, History ^ 107-161. 

" Wheaton, p. iii. ." Valin states that this jurisprudence, which prevailed in the 
French prize courts from 1681 to 1744, was peculiar to them and to the Spanish 
Courts of Admiralty, the usage of other nations being to confiscate the goods of 
the enemy only.'' Ihid.y p. 114. 

Bynkershoek (Questiones juris publiciy lib. I, cap. 14) denies that the neutral ship 
carrying enemy goods might be condemned, but he admits that the goods are sub- 
ject to confiscation. He also agrees with Grotius (De jure belli ac pacis, lib. Ill, 
cap. 6) that the riile that "goods found in enemies' ships are to be treated as ene- 
mies' goods ought not be accepted as a settled rule of the Law of Nations, but as 



fflSTORY OF INTERNATIONAL LAW 65 

rule, the prindples laid down by the Marine Ordinance of Louis 
XrV may be said to have entered largely into the theory and 
international practice (both customary and conventional) of 
Europe during the seventeenth and eighteenth centuries.** 

64. The Eighteenth Century. — The most important events 
in the international relations of the eighteenth century were: 
the admission of Russia under Peter the Great to full member- 
ship in the circle of European States ; the rise of Prussia imder 
Frederick the Great as a first-rate Power; the declaration and 
achievement of American independence; and the outbreak of 
the French Revolution. 

The colonization of America by the leading nations of Eu- 
rope, which was begun on a large and effective scale during 
the seventeenth and continued during the eighteenth century, 
gave rise to new questions to which the Roman law of occupaiio 
and aUuvium was applied. In Europe the main issues were 

indicating a certain presumption which may be rebutted by valid proof to the con- 
trary." Grotius adds : ''And so it was judged in full senate by our Hollanders in 
1338, when war was raging with the Hansa towns ; and the judgment has become 
law." Some eighteenth century publicists like Hllbner and G. F. de Martens de- 
clared that both neutral goods on enemies' ships and enemy goods on neutral ships 
were free ; but their views were not generally accepted either in theory or practice. 

** It is extremely difficult to say what the law was either in general or at any par- 
ticular time and place. The rules of the ConsoUUo seem to have prevailed quite 
generally during the period extending from the thirteenth to the middle of the six- 
teenth centuries, when France adopted harsher rules. About the middle of the 
seventeenth century, the Dutch began to secure the insertion of the rule of "free 
ships, free goods " into treaties, conceding in return, the confiscation of neutral goods 
in belligerent vessels (enemy ships, enemy goods). This latter principle was re- 
garded as a corollary of the former, thus reversing the maxims of the Consolaio del 
Mare. Even England, which became the champion of the double doctrine of the 
ConsolatOf yielded these rules in a nimiber of treaties. The United States, while 
advocating the adoption of the principle of "free ships, free goods" and incorporat- 
ing it into most of their treaties, followed English precedents in their interpretation 
of the customary law, thus recognizing the right of capture of enemy goods in neutral 
vessels. On the other hand our Government and Courts have always maintained 
that the goods of the neutral found in the vessel of an enemy are free. The leading 
case is that of The Nereide (181 5), 9 Cranch, 388, especially p. 418. 

On this subject, which has become a mere matter of historical interest since the 
Declaration of Paris in 1856, see De Boeck, De la proprieli ennemie sous pavilion 
ennemie (1882) ; Bonfils (FauchiUe), Nos. 1497-1526; Dupuis, Le droit de la guerre 
mofUime (1899), ^' 2; Hall, Pt. IV, chs. 7 and 9; 2 Halleck (Baker's 3d ed.), 
279-286 ; 2 Hautefeuille, De droit des neutreSy Titre X ; Kleen, De la neutralitif I, 
Introduction-historique, and II, 92-215 ; Lawrence, Pt. IV, ch. 4 ; Manning, Bk. V, 
ch. 6; 3Phillimore, Pt. DC, ch. io; 2 Ortolan, Z>i^. <fe ia nfer, liv. Ill, ch. 5 ; Rivier, 
429-430; Taylor, Pt. V, ch. 2 ; 2 Twiss, ch. 5 ; and 2 Westlake, 125-128. 



66 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

dynastic, economic, and territorial, and the principle of the 
balance of power based on an equilibrium of forces was re- 
peatedly afllrmed and violated. The diplomacy of this period 
was dominated by Machiavellian aims and methods.^ The end 
was the glory and aggrandizement of d3masties and States ; and 
to attain these ends all means seemed good. Treaties were 
violated whenever the interests of the State {raison d^£,tat) 
appeared to demand it, and wars were imdertaken on the slightest 
pretexts. Frederick the Great suddenly invaded Silesia upon 
the death of Charles VI, in 1740, within a few years after having 
written his AtUi-Machiavd ; and of all the States which had 
guaranteed the Pragmatic Sanction of the Emperor, England 
alone (and she acted from motives of self-interest) kept faith 
with Austria upon the accession of Maria Theresa after the 
death of her father. But the greatest crime committed by the 
Machiavellian statesmen of the eighteenth century was the ex- 
tinction of one of the most important members of the European 
family of nations — the threefold division of Poland in 1772, 

1793, and 1795-^ 

65. The Armed Neutrality of 1780. — Early in 1780 the 
Russian Government laid down the following rules, which were 
primarily directed against the maritime pretensions of Eng- 
land : (i) all neutral vessels may freely navigate from port to 
port ; ^ (2) the goods belonging to the subjects of the Powers 

^ On the Machiavellian character of the eighteenth-century diplomacy, see espe- 
cially Sorel, V Europe et la rivoliUion franqaise, I, particularly ch. I. 

** The first division of Poland has been characterized by Wheaton (History ^ p. 
267) as the "most flagrant violation of natural justice and International Law which 
has occurred since Europe first emerged from barbarism." Sorei (op. cit.^ p. 89) 
remarks, " Two episodes summarized the custom of Europe on the eve of the French 
Revolution : the war of the Austrian Succession and the division of Poland." He 
calls these the "testament of old Europe," and declares that after this had been 
signed she could only die, leaving as a legacy the pernicious tradition of the abuses 
from which she perished. 

^ This is a denial of the famous Rule of 1756 which forbade neutrals to engage 
in the coasting trade of a belligerent, or in trade between a belligerent and its colo- 
nies, when such trade is not permitted during peace. The rule is now practically 
obsolete ; whether it was ever good law is doubtful. The principle had been ap- 
plied to the coasting trade before 1756, and was extended to the colonial trade dur- 
ing the Seven Years' and the Revolutionary wars. The great champion of the Rule 
was England. The leading case is that of The Immanuel, 2 Rob. Rep. 186. On the 
Rule of 1756^ see especially Hall, § 234; 2 Kleen, § 175 ; Manning, Bk. V, ch. 5 ; 
7 Moore, Digest , 11 80; 3 Phillimore, Pt. IX, ch. 11 ; and Wheaton, History ^ 217- 
219. 



r 



HISTORY OF INTERNATIONAL LAW 67 

at war shall be free in neutral vessels, except contraband articles ; * 
(3) such contraband articles shall be restricted to munitions 
of war ; (4) the denomination of blockaded port shall only be 
given to a port " where there is, by the arrangements of the 
ix>wer which attacks it with vessels, stationed sufficiently near, 
an evident danger in attempting to enter it." ^ These prin- 
ciples were approved by France, Spain, the United States, and 
Austria, and were incorporated into the conventions of the 
League of Armed Neutrality of 1780, which was formed by 
Denmark and Russia and soon .joined by Sweden, Holland, 
Prussia, Portugal, and the king of the Two Sicilies. In 1800 
these principles were affirmed anew, with some modifications 
and additions,*^ by the Second League of Armed Neutrality, con- 
sisting of Russia, Prussia, Sweden, and Denmark. 

66. The French Revolution. — The outbreak of the French 
Revolution, and the successfid inauguration of the American 
Union based on principles of democracy, nationality, and federal- 
ism, mark a new epoch in the history of international relations, 
as of civilization in general. 

** See supra, note 34. This principle of "free ships, free goods" had also been 
asserted in 1753 by the Prussian commissioners who reported to Frederick the Great 
on the celebrated Silesian Loan Controversy. See Ch. de Martens, 2 Causes cilibres, 
Cause premiere. For a good sunmiary of this controversy between Great Britain 
and Prussia, see Wheaton, History, 306-217. 

* Wheaton, History, 297-398. Upon the Armed Neutrality of 1780, see espe- 
cially Bergbohm, Die bewafnete NeutraliUtt (1884) ; De Boeck, De la propriHi 
prioie ennemi, 55 ff . ; Fauchille, La diplomatic fran^aise et la ligue des neutres de 
1780 (1893); Manning, Bk. V, ch. 6, 335; 3 Phillimore, clxzxviff.; Wheaton, 
History, 395 ff. 

^ The main additional article adopted by the Second Armed Neutrality of 1800 
affirmed tha^the "declaration of the officers, commanding the public ships which 
shall accompany the convoy of one or more merchant vessels, that the ships of his 
convoy have no contraband articles on board, shall be deemed sufficient to prevent 
any search on the convoying vessels or those under convoy." Wheaton, History, 
p. 399. It will be seen that several of the principles of the Armed Neutrality 
Leagues are still in advance of International Law. They were, of course, far in 
advance of the times in which they were formulated. Though soon violated by 
some of the very nations which declared them, they do not deserve the cavalier 
treatment which they receive at the hands of several English publicists. As 
Lawrence {Principles, 3d ed., p. 104) points out, " the controversies attending the 
formation, progress, and dissolution of the two great leagues known as the Armed 
Neutralities of 1 780 and 1800, did almost as much to clear up the question of neutral 
rights as the Alabama Controversy and the action of Washington in bis second ad- 
ministration did to dear up the question of neutral duties." 



68 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

The Abb6 de Saint-Pierre had presented the world with his 
" Project of Perpetual Peace " in 1713. Montesquieu taught 
that the Law of Nations is naturally based upon the principle 
that the various nations should do each other as much good as 
possible in times of peace; in war as little harm as possible 
without injuring their true interests. Rousseau affirmed that 
war is not a relation between individuals but a relation between 
States. Mably, the author of an important work entitled 
Droit public de VEurope fandi sur les traitis (The Public Law 
based on Treaties, 1 748) , advocated love for justice and human- 
ity, respect for treaties, and the inununity of private property 
in maritime warfare. 

The National Assembly of France solemnly declared on 
May 22, 1790, that " the French nation renounces wars of con- 
quest and will never use force against the liberty of any people." ** 
But on November 19, 1792, the National Convention, abandon- 
ing the early principles of the Revolution, issued its famous 
decree that France " will grant fraternity and aid to all peoples 
who may wish to recover their liberty," ^ a decree which was, 
however, abrogated on April 14, 1793, and supplanted by one 
declaring in favor of non-intervention. The Jacobins incor- 
porated the principle of non-intervention in their still-bom 
Constitution of 1793.'' On June 18, 1793, Abbfi Gregoire pre- 
sented a " Project for a Declaration of the Law of Nations " 
in twenty-one articles,** as a pendant to the Declaration of the 

•* 2 Sorel, VEurope et la rto. franoaise, p. 89. This decree became part of tit. VI 
of the Constitution of 1791. See Anderson, ConsiUtUions and Documents, 93, and 
Helie, Les constitutions, 293. 

^ 3 Sorel, op. cit., 170. This decree was supplemented by that of December 15, 
1792, proclaiming liberty and sovereignty to all peoples. See Anderson, op. cit.. 
No. 28, pp. 130-132. 

u "The French people declares itself the friend and natural ally of free peoples ; 
it does not interfere in the governments of other nations ; it does not allow other 
nations to interfere in its own.'' Arts. 11 8-1 19 of the Const, of 1793; Anderson, 
No. 39, p. 183. 

** The more important of these articles are as follows : 
Art. 2. The peoples are independent and sovereign. 
Art. 3. A people should do to others as it would have them do to it. 
Art. 4. The peoples should do each other as much good as possible in times of 

peace ; in war, the least harm possible. 
Art. 5. The particular interest of a people is subordinate to the general interest of 

the human family. 
Art. 6. Every people has a right to organize and change its government. 
Art. 7. A people has not the right to intervene in the government of others. 



mSTORY OF INTERNATIONAL LAW 69 

Rights of Man of 1789. It coutained few principles which are 
unsound* Some of them form part and parcel of the funda- 
mental rights of States ; others belong to the International Law 
of the future ; only a few are impracticable. This Project, which 
has been characterized as Utopian, was rejected by the Con- 
vention ; but it may nevertheless be regarded as expressing the 
altruistic and idealistic spirit of the French Revolution in its 
attitude toward foreign nations. As in the case of the Decla- 
ration of the Rights of Man, its great defect was that it con- 
tained no Declaration of Duties, 

67. The Revolutionaiy and Napoleonic Era. — Like historical 
Christianity, the French Revolution proved false to its principles, 
and France entered upon a career of aggression and conquest 
which culminated in the short-lived Napoleonic Empire (1804- 
1 81 4), embracing the greater part of central and southern Europe. 
As in the case of the aggressions of Louis XIV, Great Britain headed 
a series of coalitions against Napoleon I which ended in his down- 
fall and the reduction of France to her former boimdaries. Dur- 
ing the period of the gigantic Revolutionary and Napoleonic 
struggles (1792- 1815), fundamental principles and customs of 
International Law, more especially of maritime law, were set at 
naught by both France and England, and the rights of neutral 
commerce were violated in the most outrageous manner. Napo- 
leon, through his Berlin and Milan decrees of 1806 and 1807, 
not only declared the whole British Isles to be in a state of block- 
ade and interdicted all commerce and correspondence with them, 
but ordered that all vessels sailing to or from any port in the 
United Kingdom or its colonies should be confiscated.^ 

Art. 10. Each people is master of its territory. 

Akt. 15. Ad enterprise against the liberty of one'people is a criminal attempt against 

all the others. 
AsT. 21. Treaties between the peoples are sacred and inviolable. 

For the full text of this remarkable declaration, see Nys, La rivoluiion Jran^aise 
et le droit int. in tiudes, II, 395-396; and i Rivier, 40-41- 

** The Continental System of Napoleon was only a continuation of a policy 
begun under the First French Republic. "Already in 1793 England and Russia 
interdicted all navigation with the ports of France, with the intention to subdue 
her by famine. The French Convention answered with an order to the French fleet 
to capture all neutral ships carrying provisions to the ports of the enemy or carrying 
enemy goods." i Oppenheim, § 46. For details, see Mahan, Influence of Sea 
Power upon the French Revolution and Empire, II, ch. 17; and Wheaton, History, 

372 ff. 

On Napoleon's Continental System, see Manning, Law of Nations, Bk. V, ch. 10; 



70 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

The British Orders in Council declared all French ports, to- 
gether with those of her allies, to be in a state of blockade, and 
ordered the confiscation of any neutral vessel carrying " certifi- 
cates of origin " — a device for distinguishing between British 
and neutral goods. These measures taken together threatened 
the destruction of all neutral commerce. They called forth the 
protest and opposition of the United States, which became the 
main champion of neutral rights and duties at the beginning of 
Washington's administration in 1793 — a position which she has 
since, on the whole, maintained.^ 

Though a period of conquest, violence, and reaction, it must not 
be forgotten that the French under Napoleon virtually destroyed 
old f eudalistic and absolute Europe, and sowed the seeds of democ- 
racy and nationality, which eventually bore fruit •^ in a new and 
in part rejuvenated and regenerated Europe. 

68. The Congress of Vienna. — The balance of power in Eu- 
rope was once more restored at the reactionary Congress of Vienna 
in 1814-1815." Though largely basing its work upon the principles 
of legitimacy •• and ignoring the powerful forces of democracy and 
nationality, this Congress nevertheless established a new politi- 
cal order in Europe and settled some important questions of 
International Law. It defined the relations of ministers, en- 

and the vast Napoleonic literature, especially Foumier, Rose, Sloane, Lanfrey, etc. 
Perhaps the best accounts are those by Mahan, op, of., ch. 18 ; and Henry Adams, 
History of the U. 5., passim, particularly Vol. IV, ch. 4. 

For the documents bearing upon the System, see Anderson, Constitutions and 
Documents, No. 77 ; and the University of Pa. Trans, and Reprints, Vol. II, No. 2, 
17-26. 

** For good accounts of the efforts of the United States to maintain and enforce 
neutrality during the Revolutionary and Napoleonic period, see Wheaton, Int. Law 
(Dana's ed.), note 215; Moore, Am. Diplomacy, chs. 2 and 3; Henry Adams, 
History of the U. S., passim. 

*^ Especially fruitful were the Secularization and Mediation Acts, which reduced 
the number of German States to thirty-nine, and prepared the way for Bismarck's 
work of unification and reorganization in Germany. 

*• On the Congress of Vienna, see especially Debidour, Histoire diplomatique de 
I* Europe, ch. 11 ; 2 Fjrffe, History of Modern Europe, ch. i ; Rose, Revolutionary 
and Napoleonic Era, ch. 1 1 ; Seignobos, Histoire politique de V Europe contemporaine, 
(Eng. trans. 1899), ch. i ; Stephens, Revolutionary Europe, ch. ii ; Wheaton, His- 
tory, 424-506. See also Hazen, Europe since 181 5, ch. i and pp. 738-739 for select 
bibliography. 

^ But this principle was not thoroughly and consistently applied, e.g. in Sweden 
and Germany. 



mSTORY OF INTERNATIONAL LAW 71 

V03rsy and ambassadors ; declared in favor of the abolition of the 
African slave trade ; and agreed. upon general principles intended 
to secure freedom of navigation on great international rivers, at 
least by co-riparian States. 

Among the political acts of the Congress of Vienna shoidd be 
particularly noted : the union of Norway and Sweden and of 
Belgium and Holland ; the reorganization and neutralization of 
Switzerland ; the reorganization of the new Germany of thirty- 
nine States into a loose Confederacy ; and, in general, the restora- 
tion of the old dynasties in France, Spain, Italy, and Germany.^ 

69. The Period of Reaction (1815-1848) . — Under the deaden- 
ing influence of the Mettemich System,^ the reaction continued 
for a generation (1815-1848) after the close of the Congress of 
Vienna. Yet there was progress even during this oppressive 
r£gime. 

70. The Holy Alliance. — In 181 5 the Emperors of Russia and 
Austria and the King of Prussia formed what is generally known 
as the Holy Alliance,^* pledging themselves to apply the precepts of 
Christianity, viz. fraternity, justice, charity, and peace, to the 
conduct of international as well as internal affairs. But much 
more important than this paper alliance, based on mere sentiment 
and vague aspirations possibly cloaking ulterior designs, was the 
renewal of the Quadruple Alliance the same year between Russia, 
Austria, Prussia, and England. In Article 6 it was decided ^' to 
hold periodical meetings consecrated to great comjnon objects, 
and to concert measures for the repose and prosperity of the 
peoples." ^ 

71. The Concert of Europe. —This alliance marks the begin- 
ning of the European Concert which undertook to suppress revolu- 
tions, maintain the treaties of Paris and Vienna, and regulate the 
affairs of Europe generally. It marks an attempt to substitute 
for the old European States-system or comjnunity of nations a 
new society or Confederacy which should be under the control or 

* The main lines of this resettlement of Europe were laid down by the allies 
in the treaty of Chaumont of March i , 1814. 

^ On "Europe imder the Mettemich System," see especially Seignobos, Pol, 
History of Europe, ch. 25 ; and Hazen (see index and bibliographies). 

• For the text of the Holy Alliance ^ see the University of Pa. Trans, and Reprints^ 
Vol. I, No. 3, p. 940. For a good summary, see Hazen, 14-16. 

^ Phillips, Modem Europe, p. 19 ; or Hazen, 16 ff. 



72 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

dictatorship of a committee of the Great Powers. In 1818 it 
was joined by France and became known as the Pentarchy, but 
a rift in the alliance soon showed itself when England and France 
refused to sign the Troppau Protocol of 1820.^ England with- 
drew altogether at Verona in 1822. At Aix-la-Chapelle (1818), 
the Powers declared for the first time that it was their " unalter- 
able determination never to swerve from the strictest observance 
of the principles of the Law of Nations, either in their relations 
with one another or with other States." ^^ In pursuance of their 
policy of intervention — a principle to which England never 
assented — they held a series of Congresses (1818-1822) ^ which 
authorized interventions in Naples, Piedmont, and Spain. 

72. The Monroe Doctrine. — When, however, it was proposed 
to extend this system to the Spanish colonies in America which 
had achieved their independence, the President of the United 
States, acting upon a hint from the great British statesman 
Canning, interposed and promulgated the famous Monroe Doc- 
trine, in his annual message to Congress of Dec. 2, 1823. He 
declared that " we should consider any attempt on their part 
(i.e. of the Allied Powers) to extend their system to any portion 
of this hemisphere as dangerous to our peace and safety." He 
added: — 

" With the existing colonies or dependencies of any European 
Power we have not interfered and shall not interfere. But with 
the Governments who have declared their independence and 
maintained it, and whose independence we have, on great con- 
sideration and just principles, acknowledged, we could not view 
any interposition for the purpose of oppressing them, or controll- 
ing in any other manner their destiny, by any European Power 

** The Protocol of Troppau was an extension to Europe of the reactionary Carls- 
bad Decrees which had struck such a severe blow at freedom in Germany. It de- 
clared that the '* States which had undergone a change of government due to revo- 
lution, the results of which threaten other States, ipso factOy cease to be members of 
the European Alliance, and remain excluded from it imtil their situation gives guar- 
anties for legal order and stability." 

For the text of the Carlsbad Decrees and Troppau Protocol, see Univ. of Pa. Trans, 
and Reprints, Vol. I, No. 3, pp. 16-24. For good accounts sec Phillips, Modem 
Europe, pp. 73 and '96 ; and Hazen, 59-60. 

^ For the text of this declaration, see Nys on " Le Concert European," in 
2 iiudes, p. 27. 

^ It is to the work of these Congresses and the System represented by them that 
the term "Holy Alliance" has been usually applied. 



HISTORY OF INTERNATIONAL LAW 73 

in any other light than as the manifestatioQ of an unfriendly dis- 
position toward the United States." ^^ 

The promulgation of the Monroe Doctrine, which was followed 
by the recognition of the independence of the Latin-American 
States by England, definitely added to the society of nations the 
leading States of South America and Mexico.^ 

The system and principles of the so-called " Holy Alliance " 
were finally overthrown by the Revolutions of 1830 and 1848 
which, although followed by a period of reaction, eventually 
substituted the principles of nationality, democracy, and constitu- 
tional rule for those of legitimacy and absolutism. 

73. The Declaration of Paris of 1856. — The next important 
step in the development of International Law was taken at the 
close of the Crimean War in 1856.** Not only was Turkey ex- 
pressly admitted to theoretical full standing as a member of the 
Society of Nations, but the Congress of Paris issued the following 
epoch-making Declaration of leading principles of Maritime 
International Law : — 

^ 2 Richardson, Messages and Papers of the Presidenis, 218. 

In another part of this same message (p. 209), Monroe also declared that **the 
American continents, by the free and independent condition which they have 
assxmied and maintain, are henceforth not to be considered as subjects for future 
colonization by any European Powers/' This part of the message was directed 
primarily against the encroachments of Russia in the Northwest. 

Perhaps the best and most inclusive statement of the American policy is contained 
in a letter by Jefferson to Monroe, dated October 24, 1823 ; " Oui first maxim should 
be, never to entangle ourselves in the broils of Europe. Our second, never to suffer 
Europe to intermeddle in ds-Atlantic affairs." 

On the Monroe Doctrine, see * Dana's note 36 to Wheaton's Ini. Law; * Chadwick, 
The Diplomatic Relations of the U. 5. with Spain, ch. 10; Beaumarchais, La doctrine 
de Monroe (1898) ; ♦ Coolidgc, The U.S. as a World Power, ch. 5; Edginton, The 
Monroe Doctrine (1904); * Henderson, in American Diplomatic Questions (1901), 
Pt. IV; Moore, in American Diplomacy, ch. 6; *6 Moore's Digest, ch. 20; 
Petin, Les £tats Unis et la doctrine de Monroe (1900) ; Redaway, The Monroe Doc- 
. trine (1898) ; Snow, Am. Diplomacy, Pt. II. A good appreciation of the Monroe 
Doctrine is contained in Moulin's excellent work on La doctrine de Drago (1909). 

^ Their recognition by the United States took place in the spring of 1822 ; by 
England early in 1825. See Paxson, The Independence of the South A merican Repub- 
lics (1903). 

* The Declaration of Paris was signed on April 16, 1856, by all the Powers repre- 
sented at the Congress, viz. England, France, Austria, Russia, Sardinia, Turkey, 
and Prussia. The States not represented at the Congress were invited to sign, and 
most of them did co before the end of the year. Japan signed in 1886. The United 
States, Spain, Mexico, and a few minor States held out, but all have in practice 
observed the rules of the Declaration. Spain gave notice of her adhesion at the 



74 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

(i) Privateering is and remains abolished. 

(2) The neutral flag covers enemy's goods, with the ex- 

ception of contraband of war. 

(3) Neutral goods, with the exception of contraband of 

war, are not liable to capture under an enemy's flag. 

(4) Blockades, in order to be binding, must be effective; 

that is to say, maintained by a force sufficient really 
to prevent access to the coast of an enemy. 

74. The Period since 1856. — The half century beginning with 
the Declaration of Paris in 1856 and ending with the London 
Conference in 1909 has seen greater progress in the direction of 
internationalism and more successful attempts to improve and 
codify International Law than any other in history, and possibly 
more than all previous half centuries combined. It has been a 
period of Congresses and Conferences,*^ of International Unions 
and Associations with definite organs in the shape of Commissions 
and Bureaus which are rapidly developing a sort of international 
legislation and an International Administrative Law. 

Although the principle of nationality won its greatest triumphs 
during this period in the achievement of Italian and German 
Unity (1859-1870), it seems that the spirit of nationality is being 
modified or supplemented by that of internationalism, and that 
the older conceptions of sovereignty and independence are yield- 
ing to ideals of interdependence. 

75. Codification of the Law of Nations. — The first important 
step towards the codification of the laws of land warfare was taken 
in 1863 when our Government published the "Instructions for 
the Government of Armies of the United States in the Field,'* 
prepared by Dr. Francis Lieber.*^ In 1864 there was concluded^ 

Hague Conference of 1907. The objection of the United States was based upon the 
idea that, inasmuch as we did not possess a large navy, the right to fit out privateers 
must be retained until the capture of private enemy property at sea is abolished. 
Inasmuch as this condition no longer holds and all the Maritime Powers have ob- 
served the rules laid down by the Declaration of Paris for at least fifty years, there 
is no longer any reason for denying or doubting their validity as International Law. 

On the Declaration of Paris, see especially Higgins, The Hague Peace Conferences 
(1909), 1-4. 

^ AU real distinction between the words Congress and Conference, if such ever 
existed, seems to have been lost. 

" The "Instructions" are printed as an Appendix in Scott's Texts of the Hague 
Corjcrcfucs ; and as Appendix II in Wilson*s International Law, 



raSTORY OF INTERNATIONAL LAW 75 

on the initiative of Switzerland, the '' Geneva Convention for 
the Amelioration of the Condition of the Wounded in War." ^* 
This Convention, which provided for neutralization of persons 
and things connected with the care of the sick and wounded, was 
signed by nearly all civilized Powers. By the Declaration of St. 
Petersburg of 1868 many States renounced, in case of war among 
themselves, the use of any " projectile of less weight than 400 
grammes (about 14 ounces) which is explosive, or is charged with 
fulminating or inflammable substances." ^ 

76. The London Conference of 1871. — In 187 1, the Confer- 
ence of London ^ solemnly proclaimed '' that it is an essential 
principle of the Law of Nations that no power can liberate itself 
from the engagements of a treaty, or modify the stipulations 
thereof, imless with the consent of the contracting Powers by 
means of an amicable agreement." But it is very doubtful 
whether, stated in this absolute form, the above declaration is a 
principle of International Law. 

77. The Brussels Conferences of 1874. — In 1874 the Brussels 
Conference ^ presented the world with a Code of Land Warfare 

** For the text of the Geneva Convention (including the Additional Articles of 
1868) see Higgins, The Hague Peace Conferences , 8-17; Whittuck, Int. Doc.^ 3-9; 
or Supplement to i i4. /. (1907), 90-95. But the Additional Articles failed of ratifi- 
cation. The Convention resulted from an agitation aroused by the indefatigable 
labors of M. Moynier and the publication of a book entitled Un souvenir de Sol- 
ferine by M. Dunant, a Swiss philanthropist who had witnessed the terrible sufferings 
of the wounded in that battle (1859). 

** This was based on the principle that the only legitimate object of war "is to 
weaken the military force of the enemy ; that for this purpose it is sufficient to dis< 
able the greatest possible number of men ; that this object would be exceeded by the 
employment of arms which uselessly aggravate the sufferings of disabled men, or 
render their death inevitable/' See preamble of the Declaration^ in Higgins, 6; 
or Whittuck, 10. 

^ This Conference was attended by representatives of the same Powers which had 
signed the Treaty of Paris of 1856 — an agreement which Russia had violated by 
re&tablishing her maritime arsenal on the Black Sea upon the outbreak of the 
Franco-German War of 1870. 

•• For the text of the Code of the Brussels Conference^ see Higgins, 273-280; Wil- 
son and Tucker, Int. Law, 384-394 (Appendix III) ; Supplement to i i4. /. (1907) , 
96-103 ; or Scott, Texts of the Two Hague Conferences. 

The Brussds Conference was attended by delegates from 15 European States. 
Owing to a misunderstanding, the United States was not represented. The Latin- 
American States were not invited, and several delegates from South American States 
were refused admission. See Nys in 2 J^udes, 39-40. On the Brussels Conference^ 
see especially Holland, Studies, 59-78; and F. de Martens, La paix et la guerre 
(1901), 73-132. 



76 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

which, though it failed of ratification, obtained great authority 
and was generally observed. It was largely based on the Ameri- 
can '' Instructions " and became in its turn the model for the 
Hague Code of 1899. 

78. The West African Conference. — The next important 
Conference was the West African Conference, which met in 
1884-1885 to decide certain questions concerning the Congo 
Free State, whose independence it recognized. This Conference, 
at which the United States was represented, stipidated for freedom 
of trade and travel within the Congo basin ; agreed to '^ strive 
for the suppression of slavery, and esi)ecially of the negro slave 
trade ;" " engaged to respect the neutrality of the Congo terri- 
tories; and the Signatory Powers obligated themselves to pre- 
serve reasonable order in the territories occupied by them, as also 
to notify one another of any future occupations or the establish- 
ment of future protectorates on the coast of the African continent. 

79. International Unions and Congresses. — The period since 
1850 has also been characterized by a remarkable number and 
variety of International Unions and Conferences,^^ .both public 
and private, dealing with economic, social, and sanitary matters. 
Beginning with the first International Sanitary Conference held 
at Paris in 185 1 ,^ we have a long succession of official International 

■• Art. 6 of the "General Act of the Conference of Berlin Concerning the Congo," 
which is printed in the Supplement to $ A. J. (1909), No. i, pp. 7-25. This Act 
was signed by the leading maritime Powers, the United States, and a nimiber of 
the minor European States (including Turkey) — 14 in all. 

It was afterwards supplemented by the Conference of Brussels of 1890, attended 
by 17 States (including the additional States of Persia, Zanzibar and the Congo), 
which agreed upon a " General Act for the Repression of the African Slave Trade 
and the Restriction of the Importation into, and Sale in, a certain defined zone of 
the African Continent of Firearms, Anmiunition, and Spirituous Liquors. '* For 
the text of this Act of 100 Articles, see Supplement, op, cU., 29-59. 

On the "Origin of the Congo Free State," see an interesting article by Jesse S. 
Reeves in 3 i4. /. (1909), 99-118. 

^^ For a list of 1 16 such Congresses or Conferences of an official character since 
1850, compiled by the Hon. S. £. Baldwin, see i A. /., 808-817. It is followed 
by a list (pp. 818-829) of nearly 200 International Congresses, Conferences, or Asso- 
ciations, composed of private individuals. These lists must be far from complete, 
for there are said to have been over 160 International Congresses during the year 
1907 alone. 

•• At this Conference twelve Powers were represented. There have been many 
subsequent International Sanitary Conferences. "In the one field of sanitation 
and medicine there are at least twenty separate international organizations.** 
Reinsch, in N. Y. Independent for May 13, 1909. 



mSTORY OF INTERNATIONAL LAW 77 

Congresses dealing with all sorts of subjects, such as statistics, 
sugar duties, weights and measures, monetary matters, inter- 
national postal and telegraphic correspondence, navigation of 
rivers, the metric system, submarine cables, private international 
law, protection of industrial property, railroad transportation, 
commercial law, international copyright, regulation or sup- 
pression of the liquor traffic in certain places, customs duties, 
promotion of the interests of the working classes, abolition of 
the slave trade, protection of labor in mines and factories, inter- 
national arbitration, fisheries, repression of epidemic diseases, 
international telephony, suppression of the " white slave " 
traffic, international wireless telegraphy, agriculture, etc.^' 

The most important of these are perhaps the Conference on 
Telegraphic Correspondence which met at Paris in 1865 and 
formed the Univereal Telegraph Union; the Universal Postal 
Union founded in 1874 ; the European Union of Railway Freight 
Transportation (1890) ; the Union for the Protection of Industrial 
Property, i.e. patents, trade-marks, etc., created in 1883 ; the 
Hague Union of 1886 for the Protection of Works of Art jgid 
Literature ; the four Hague Conferences (between 1893 and 1904) 
on Private International Law ; and the four Pan-American Con- 
gresses which have been held since 1890. 

Many of these Unions •^ are endowed with permanent organs of 
legislation and administration. Their legislative organ may be 
said to be the Conference or Congress where imanimity is the 

■* In addition to the lists referred to above, see the articles on " Int. Conferences" 
and "Int. Unions" by Judge Baldwin and Professor Reinsch in i A. J. (1907), 
pp. 569-623; and Reinsch, Public Int. Unions (191 1). For general references see 
pp. 582 and 602 ; and Bonfils (Fauchille), note, pp. 496-497. The main authorities 
are Descamps, Les offices iniermUionaux (1894); Mojmier, Les bureaux interna- 
tionaux (1892); Van Overbeigh, ^association int. (1907); Poinsard, Droit int. 
conventional (1894) ; Ibid., Les unions et ententes intemationales (2d ed., 1901), 
Ibid., Le droit int. au XXe siicle (1907) ; Meili, Die intemationalen Unionen (1885- 
1889) ; and B. von Toll, Die int. Bureaux (1910). 

Very few writers on International Law devote much space to this subject. 
Exceptions are Bonfib (Fauchille), Nos. 914-928; 2 M6rignhac, Traiti, 688-732; 
Liszt (3d ed.), §§ 16-17, 28-30, 33-36 ; 2 Nys, Le droit int.^ sec. VIII, ch. 8 ; i Op- 
penheim, §§ 458-471, 578-591 ; and Ullnuum (2d ed.), § 58. The Russian F. de 
Afartens, TraiU, devotes two whole volumes (II and III) to what he calls "Inter- 
national Administration"; but his whole system is erroneous. He classifies the 
right of embassy, Private International Law, and war and neutrality under this 
head. 

* There are said to be over thirty public or official International Unions. 



78 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

general rule, but to which there are exceptions. The adminis* 
trative organs are Commissions and Bureaus.*^ One result of the 
activities of these various organs will doubtless be the develop- 
ment of the science of International Administrative Law — a 
branch of international jurisprudence ^hich is still in its 
infancy. 

80. Intemational Arbitration. — The practice of international 
arbitration, which had greatly declined at the close of the Middle 
Ages and which had almost disappeared from intemational usage 
during the seventeenth and eighteenth centuries,^ may be said 
to have been revived by the Jay treaty of 1794 between England 
and the United States, which provided for the reference of sev- 
eral questions to arbitration. But it was not until the smoke 
had cleared away from the battle fields of the Revolutionary and 
Napoleonic wars that the practice of arbitration spread or be- 
came more or less general. This movement, which had become a. 
subject of intemational agitation, begun in the United States 
and England, was given a great impetus ^ through the successful 
arbitration of the Alabama Claims by the Geneva Arbitration 
of 1872. Since then arbitrations and arbitration treaties seem to 
have increased in a sort of arithmetical progression,** and they 

*^ The Commissions are generally composed of representatives of the members 
of the Unions, and sometimes exercise a sort of control or supervision over the 
Bureaus, many of which are located at Berne, Switzerland. 

On this subject see especially the excellent article entitled ''Administrative Law 
and National Sovereignty" by Professor Reinsch, in $A. J. (1909), 1-45; /6m^., in 
Public Int. Unions (191 1) ; and Neimieyer, in 18 R. D. L P. (1911), 492-499 for a dif- 
ferent view of the matter. See also the latter's Grundlagen des int. Verwaltungs- 
rechi (191 1). 

** This fact was doubtless largely due to the absolute monarchs of this period who, 
ruling by divine right, were unwilling to submit their cause to any other than the 
God of Hosts. 

" In 1828 the ''American Peace Society" was founded by William Ladd of Massa- 
chusetts. In 1840 he published his prize essays on "i4 Congress of Nations" which 
contained a notable project of a "Court of Nations" as well. For a good descrip- 
tion of his work, see an address by J. B. Scott, in 70 Advocate of PeacCf 196-200. 

The first American Peace Association appears to have been founded by David 
L. Dodge in New York in 1815. The " London Peace Society " was founded in 1816. 

*^ For a very complete account of the arbitrations to which the United States had 
been a party up to 1898, see Moore's monumental History and Digest of IntemationcU 
Arbitrations, in 5 vols. Darby {Int, Tribunals , 4th ed., 1904, pp. 769 fif.) gives a list of 
228 instances of "formal" arbitration between 1794 and 1901. Of these there were 
ninety-one cases prior to 1872 and 137 between 1872 and 1901. The United States 
was a party in 62 cases; Great Britain, 81 ; France, 28; Prussia or Germany, 17; 



raSTORY OF INTERNATIONAL LAW 79 

have been particularly numerous since a new epoch in the his- 
tory of internationalism was ushered in by the work of the Hague 
Peace Conferences of 1899 and 1907. 

81. Lumitatton of Armaments. — In the latter part of the nine- 
teenth century a kindred movement in favor of a limitation of 
armaments was making considerable headway. Ever since the 
Franco-German war of 1870, as a result of a Machiavellian state- 
craft combined with that policy of " blood and iron " which Bis- 
marck has left as a heritage to modem Germany, and as a conse- 
quence of the new colonial imperialism and commerdaUsm^ which 
have taken possession of leading nations (notably of Great Britain 
and Germany), Europe has been virtually transformed into an 
" armed camp." This policy, indeed, preserved peace on the 
European Continent for a generation, but at a f<^rful economic, 
social, and moral cost to humanity. 

82. The First Hague Peace Conference. — With a view of 
** seeking, by means of international discussion, the most effectual 
means of insuring to all peoples the benefits of a real and durable 
peace, and above all, of putting an end to the progressive develop- 
ment of the present armaments," Czar Nicholas II of Russia* 
called the First International Peace Conference which met at 
the Hague on May 18, 1899.'^ 

Russia, 8. Many of these arbitrations were with or between Latin-American States, 
where this movement has made great progress. (On "Arbitration in Latin Amer- 
ica,'' see a book by Quesada published in 1907.) La Fontaine {Histoire sommaire) 
gives a list of 177 instances between 1794 and 1900. Darby also gives a list of 
249 instances of arbitration less formal in character {i.e. by Boards or Commissions) 
during the same period. He cites 21 instances of formal arbitration and 39 of the 
less formal sort during the first four years (1901-1904) of the twentieth century. 

Prior to 1899 ^hc number of arbitration treaties were, comparatively speaking, 
few in number, but they have greatly increased, especially since 1899. There were 
64 such treaties between 1899 and* 1907, and the number of arbitration treaties since 
the meeting of the first Hague Conference had mounted up to about 130 in 1908. 

For a list of 67 arbitration treaties between 1900 and 1908, see 2 ^4. /., pp. 824- 
826. The United States has been a party to over 20 such treaties. Fried (Die 
modeme Friedensbewegungj pp. 26-27) gives a list of arbitration treaties between 
1899-1907. For Bibliographies on arbitration, see Grifiin, List of References, pub- 
lished by the Library of Congress (1908) ; La Fontaine (1904) ; and Olivart. 

* The founder or apostle of this new imperialism appears to have been Lord 
Beaconsfield. It was not fully adopted by Germany until about 1890. See espe- 
cially the chapters on " National Imperialism" and ** German Imperial Politics" in 
Reinsch, World Politics (1900). For references, see his ^'Bibliographical Notes." 

** Russian Rescript of August 24, 1898. 

^ Twenty-six States were represented. Of these, twenty were European ; five 



8o ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

The First Hague Peace Conference soon realized that even a 
limitation of the increase of military and naval expenditure was 
impracticable at that time, and devoted its chief energies to the 
secondary purpose for which it had been called, viz. to devise 
means of securing " the maintenance of general peace." 
1 1^ Owing mainly to the opposition of Germany, the Russian plan 
of inclusive and limited compulsory arbitration was rejected ; but 
the British and American plan of a so-called '^ Permanent Court 
of Arbitration"^ was adopted in spite of the objections of the 
German government, and arbitration was recommended '' in 
questions of a judicial character, and especially regarding the 
interpretation of treaties."^ A code of arbitral proceeding was 
also adopted and recommended.^^ 

In addition to the " Convention for the Pacific Settlement of 
International Disputes," the Hague Conference of 1899 also 
agreed to two other Conventions, three Declarations, and ex- 
pressed several wishes. Very important was the " Convention 
regulating the Laws and Customs of Land Warfare," based on the 
work of the Brussels Conference of 1874. The Conference also 
adapted the principles of the Geneva Convention of 1864 to 
maritime warfare. It '^ declared " against the launching of pro- 
jectiles and explosives from balloons for five years ; the use of pro- 
jectiles the only object of which is the diffusion of asphyxiating 
or deleterious gases ; and the use of " dumdum " bullets. The 
Conference also expressed a series of six wishes in favor of con- 
sideration, at a subsequent Conference, of questions relating to the 
rights and duties of neutrals ; the inviolability of private (enemy) 
property in naval warfare ; and the bombardment of ports, towns, 
and villages by a naval force. It even expressed a wish that the 
Governments might " examine the possibility of an agreement 
as to the limitation of armed forces by land and sea, and of war 
budgets." 

(China, Japan, Persia, Korea, and Siam) were Asiatic ; and only two (the Unite<^ 
States and Mexico) American. 

" The so-called Hague Tribunal is not even a Court; it is a panel or list from 
which judges may be chosen. See infray § 314. 

•• Art. 16 of the Arbitration Treaty or First Convention. 

'^ The great advantage of such a code is that it facilitates arbitration. It is no 
longer necessary for governments to enter into long and tedious negotiations respect- 
ing the mode of procedure on the occasion of each controversy. 



HISTORY OF INTERNATIONAL LAW 8i 

83. The Second Hague Peace Conference. — Acting upon the 
request of the Interparliamentary Union which met at the St. 
Louis Exposition in 1904, President Roosevelt suggested the meet- 
ing of a Second International Peace Conference on September 
21 of that year. In accordance with the terms of the resolution 
adopted at St. Louis, he recommended the following questions as 
proper subjects for consideration : — 

' ' ( I ) The questions for the consideration of which the Conference 
at the Hague expressed a wish that a future Conference 'be called. 

'' (2) The negotiation of arbitration treaties between the nations 
represented at the Conference to be convened. 

'' (3) The advisability of establishing an International Congress 
to convene periodically for the discussion of international ques- 
tions." 

Owing, however, to the continuance of the Russo-Japanese 
War until September 5, 1905, the outbreak of the Russian Revo- 
lution which followed, and the further delay caused by the 
meeting of the Third Pan-American Conference, the Second 
International Peace Conference did not meet at the Hague until 
June IS, 1907.^1 

President Roosevelt generously conceded the honor of conven- 
ing the Second Hague Conference to Czar Nicholas II, who, for 
obvious reasons, omitted '' limitation of armaments " from the 
Russian program. But Great Britain insisted upon raising this 
question, and the United States was determined to ask for a con- 
sideration of the Drago Doctrine in a modified form, i.e. the ques- 
tion of prohibiting the use of armed force for the recovery of 
contract debts imless arbitration is refused, or in case of failure to 
submit to an arbitral award.^ 

" Out of the 57 States claiming sovereignty, 44 Governments were represented 
at this Conference. These included 18 Latin- American States. The other two — 
Honduras and Costa Rica — were invited, and appointed delegates, but these did 
not take their seats. Asia was again represented by Japan, China, Persia, and Siam. 
Korea, having been occupied by Japan, was refused admission. As in 1899, the 
vote of Montenegro was cast by Russia's representatives, and Bulgaria was again 
permitted by Turkey to send delegates. 

The number of delegates had increased from 100 in 1899 to 256 in 1907. 

72 On the Drago Doctrine y see especially Moulin, La Doctrine de Drago (1908) ; 
Drago, in I i4 . /., 692-726 ; and Hershey, "The Calvo and Drago Doctrines," /Wrf., 26- 
45. For the " Instructions " of Dec. 20, 1902, by Seflor Drago, the famous Argentine 
Minister and author of the Doctrine, see Supplement to i i4. /., I--6. For further 
references, see infra^ p. 334. 



82 ESSENTIALS OF INTERNATIONAL PUBUC LAW 

Owing mainly to the opposition of Giermany, Austria, Japan, 
and Russia, the British Government failed in its attempt to secure 
a consideration of the question of a limitation of armaments or 
restriction of military exi>enditures. Giermany even opposed the 
insertion of the words "more urgent than ever" in the resolution 
which was adopted confirming the Resolution of 1899 relative to 
this matter.^ 

Though the Second Hague Peace Conference of 1907 failed in 
some respects to meet the expectations even of conservative 
international jurists, it must be admitted that it was, on the whole, 
a notable success. It has to its credit thirteen Conventions or 
treaties, one Declaration, three wishes, and several recommenda- 
tions. 

The final Act of the Conference included the following Conven- 
tions or Treaties : — 

I. " Convention (of 97 articles) for the Pacific Settlement 
of International Disputes " — a revision of the Convention of 
1899 dealing with this subject. 

II. " Convention (of 7 articles) respecting the Employment 
of Force, for the Recovery of Contract Debts " — the famous 
Porter Resolution embodying a modification of the Drago Doc- 
trine. 

III. " Convention (of 8 articles) relative to the Opening of 
Hostilities." 

IV. " Convention (of 56 Articles) regarding the Laws and 
Customs of Land Warfare " — a revision of the Hague Code of 
1899. 

V. " Convention (of 25 articles) regarding the Rights and 
Duties of Neutral Powers and Persons in Case of War on Land." 

VI. " Convention (of 11 articles) relative to the Status of 
Enemy Merchant Ships at the Outbreak of Hostilities." 

VII. " Convention (of 1 2 articles) relative to the Conversion 
of Merchant Ships into War Ships." 

VIII. " Convention (of 13 articles) relative to the Laying 
of Submarine Mines." 

" The Conference of 1899 had declared itself of the "opinion that the restriction 
of military charges, which are at present a heavy burden on the worid, is ex- 
tremely desirable for the increase of the material and moral welfare of mai^ind;" 
and it had expressed a wish that the Governments examine the question. 



mSTORY OF INTERNATIONAL LAW 83 

IX. " Convention (of 13 articles) respecting Bombardments 
by Naval Forces in Time of War " — an appliction of the rules 
governing bombardment on land to naval warfare. . 

X. " Convention (of 28 articles) for the Adaptation of the 
Principles of the Geneva Convention (of 1906) to Maritime War- 
fare " — a revision of the Hague Convention of 1899 which had 
adapted the Geneva Convention of 1864 to maritime warfare. 

XI. " Convention (of 14 articles) relative to Certain Re- 
strictions on the Exercise of the Right of Capture in Maritime 
Warfare." This Convention includes provisions relating to the 
inviolability of postal correspondence, the exemption from capture 
of vessels engaged in coast fishing, etc., and regulations regarding 
the disposition of the crews of enemy merchant ships captured 
by a belligerent. 

Xn. " Convention (of 57 articles with an Annex) relative to 
the Establishment of an International Prize Court." 

Xni. " Convention (of 33 articles) respecting the Rights 
and Duties of Neutral Powers in Naval War." ^* 

The Conference renewed " for a period extending to The Third 
Peace Conference " the Declaration of 1899 prohibiting " the 
discharge of projectiles and explosives from balloons or by other 
new methods of a similar nature." It also declared itself '' in 
principle " in favor of obligatory arbitration,^ and that certain 

^* For a table showing which States had signed the various Conventions of the 
Second Hague Conference by June 20, 1908 — the final date set for signatures of the 
plenipotentiaries — see 2 A. J. (1908), 876-877; Higgins, 530-531; or 2 Scott, 
The Hague Peace Conferences y 528-531. All but one (Paraguay) had signed the 
Final Act. The greatest delinquents were China (which had only signed the Decla- 
ration, the First Convention, and the Final Act) ; and Nicaragua (which had only 
affixed her signatures to the Final Act.) Nicaragua has since given her adhesion 
to nearly all the Hague Conventions. The only Conventions which fared badly 
were : the Porter Resolution which was signed (and even then with many reservations) 
by only 34 States ; the Convention on Submarine Mines, which failed to receive 
the signatures of seven States (including Russia) ; the Convention relative to the 
Establishment of an International Prize Court, which was signed by only 31 States 
(Great Britain, Japan, Russia, and Brazil being among the non-signatories) ; and 
the Declaration prohibiting projectiles from balloons, which failed of 17 signatures. 
The United States did not sign Conventions VI, VII, and XIII. For a table 
showing ratifications, see 5 i4. /. (1911), 769-770. 

^ The failure of the Conference to agree upon a definite plan of obligatory arbi- 
tration was mainly due to the opposition of Germany and Austria. The proposition 
of the United States in favor of exclusive limited compulsory arbitration had thirty- 
five votes in its favor and only nine against it, with three abstentions. See Pro- 
fessor Hull's excellent article on "Obligatory Arbitration and the Hague Con- 
ferences," in 3 il. /. (1908), 731-742; and i Scott, ch. 7. 



84 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

'^ differences, and notably those relating to the interpretation and 
application of international conventional stipulations, are suscep- 
tible of being submitted to obligatory arbitration without any 
reservation." 

A resolution, confirming that of 1899, in favor of the desirability 
of the limitation of military burdens was adopted; and 'Mn 
view of the fact that military burdens have considerably increased 
in nearly all countries since the said year," ^* the Conference de- 
clared it ^' highly desirable for governments to undertake again 
the serious examination of this question." 

The Hague Conference of 1907 made the following notable 
recommendations and wishes : (i) A recommendation that the 
Signatory Powers adopt and enforce a Project or Draft of a " Con- 
vention (of thirty-five articles) for the Organization of a Court of 
Arbitral Justice "^^ as soon as they shall have reached an agree- 
ment upon the selection of judges and the constitution of the 
Court. (2) A wish that " in case of war the proper civil and mili- 
tary authorities make it their very special duty to insure and pro- 
tect the maintenance of peaceful intercourse, and notably the 
commercial and industrial relations, between the peoples of the 
belligerent States and of neutral States." (3) The wish that 
"the Powers settle, through special conventions, the situation 
in respect to the support of the burden of military occupations 
by foreigners resident within their territories." (4) The wish 
that " the elaboration of regulations relative to the laws and 



'* They have gone on increasing since 1907. It would be "highly desirable" 
to recommend action, or at least negotiation, on this subject at the next Conference. 

"" This draft, which was mainly based on a Project presented by the United States, 
was annexed to the first recommendation of the Conference and is contained in the 
Final Act. It failed of adoption because of the opposition of many of the smaller 
States led by M. RuyBarbosa of Brazil. It provides for a Permanent Court of 
competent judges (number not specified) "representing the various juridical sys- 
tems of the world" appointed for a term of twelve years and capable of reappoint- 
ment. These judges shall meet at the Hague once a year if necessary (in June) 
to decide pending cases and designate three judges to whom it delegates its powers. 
The Powers were unable to agree upon the constitution of the Court and the appor- 
tionment of the judges. 

For the text of this very interesting project, see Supplement to 2 A. J. (1908), 
29-43 ; Higgins, The Hague Peace Conferences, 498-509 ; and Scott, The Texts oj 
the Two Hague Peace Conferences. See especially the admirable article on "The 
Proposed Court of Arbitral Justice" by J. B. Scott, the real author of the Project, 
in 2 A. J. (1908), 772-810; and ch. 9 of i Scott's Hague Peace Conferences. 



mSTORY OF INTERNATIONAL LAW 85 

customs of maritime warfare may figure in the program of the 
next Conference, and that in any case, the Powers apply, as far 
as possible, to maritime warfare the principle of the Convention 
relative to the Laws and Customs of War on Land." (5) A 
recommendation that the Powers hold a "Third Peace Confer- 
ence, which might take place within a period similar to that which 
has elapsed since the preceding Conference, on a date to be set by 
joint agreement among the Powers." ^ 

Aside from its inability to agree upon definite plans for securing 
a limitation of armaments, limited obligatory arbitration, and a 
real permanent Court of Arbitral Justice, the greatest failures of 
the Second International Peace Conference at the Hague were : 
its inadequate Convention relative to Submarine Mines; its 
failure to provide a Code of Rules for the Regulation of Maritime 
Warfare; and the unsatisfactory character of the Convention 
respecting the Rights and Duties of Neutral Powers in Naval 
War. An International Prize Court was agreed upon ; but, owing 
mainly to the wide divergence between the Anglo-American and 
Continental systems of maritime jtuisprudence, it was found 
impossible to agree upon a Code of Maritime Law which should 
govern the decisions of the Court." 

" The attention of the Powers was also drawn to the "necessity of preparing the 
labors of that Third Conference sufficiently in advance to have its deliberations 
follow their course with the requisite authority and speed." It was added : — 

"In order to achieve that object the Conference thinks it would be very desirable 
that a preliminary committee be charged by the Governments about two years before 
the probable date of the meeting, with the duty of collecting the various propositions 
to be brought before the Conference, to seek out the matters susceptible of an 
early international settlement, and to prepare a program which the Governments 
should determine upon early enough to permit of its being thoroughly examined 
in each country. The committee should further be charged with the duty of pro- 
posing a mode of organization and procedure for the Conference." 

^ On the Hague Conferences of 1899 and 1907, see especially Barclay, Problems 
of Int. Practice and Diplomacy (1907) ; Bustamante y Sirvfcn, La seconde conjirence 
dt la paix (1909) ; Foster, Arbitration and the Hague Court (1904) ; Fried, Die 
gweiier Haager Konjerenz (1908) ; Higgins, The Hague Peace Conferences (1909) ; 
•Holls, The Peace Conference at the Hague (1900) ; Hull, The Two Hague Peace Con- 
ferences (1908) ; De Lapradelle, La conference de la paix, in 6 R, G. D. I. (1899) ; 
Lawrence, Int. Problems and Hague Conferences (1908) ; ^L^monon, La seconde con- 
ference de la paix (1900) ; Meurer, Die Haager Friedenskonferenz (1905) ; Nippold, 
Die Foribildungdes Verfahrens (1905); Ibid. , Die Zweite Haager Friedenskonferenz 
(1908); * Scott, The Two Hague Conferences (1909); * Renault, Vceuvre de la 
Hague (1908). For a fairly complete bibliography, see De Lapradelle et Politis, 
in 16 R. D. I. P. (1909), 385-387- 

For texts of the Conferences, see Higgins, The Hague Pea^e Conferences; Scott, 



S6 ESSENTIALS OF INTERNATIONAL PUBUC LAW 

85. The London Naval Conference of 1909. — In order to 
£nd common meeting-ground on some of the most fundamental 
points of maritime law, a Conference of the leading Maritime 
Powers was held at London during the winter of 1 908-1 909. This 
Conference agreed upon a Declaration consisting of 71 articles 
embodying a code of rules regulating the rights of neutrals and 
belligerents with respect to neutral commerce. In importance 
these rules may be compared with those laid down in the famous 
Declaration of Paris of 1856. They contain important pro- 
visions relating to the law of blockade, contraband, continuous 
voyage, hostile aid or imneutral service, the destruction of neutral 
prizes, the transfer of the flag, enemy character, the right of 
convoy, etc." 

86. The Science of International Law during the Nineteenth 
Century. — The history of the science of International Law dur- 
ing the nineteenth century has never been written. All that can 
be indicated here are the general tendencies or lines of develop- 
ment and the names of some of the leading authorities.^ 

It may be said that modem writers on International Law are 
increasingly historical and positive, although certain abstract 
and theoretical tendencies are still very marked, especially on the 
Continent of Europe. The Pure Law of Nature School has almost 
wholly disappeared,^ but publicists like Wheaton, Manning, 
Fiore, Pradier-Fod6r6, Bonfils, and Pifideliivre still show the 
influence of ideas derived from theories of natural law. 

Texts of the Two Hague Conferences ^ Supplement to 2 i4. /. (1908) ; 2 Scott, The 
Hague Peace Conferences; Whittuck, International Documents (1908) ; and Int. Law 
Situations (1908), 117 ff. 

^ On the London Conference of igop, see especially : Baty, Britain and Sea Law 
(191 1); ^Bentwick, The Dec. of London (191 1); Bowles, Sea Law and Sea Power 
(1910) ; Bray, British Rights at Sea (191 1) ; Cohen, in 27 Law Quar. Rev. (191 1), 9 ff., 
and 26 Rep. I.L.A. (191 1), 67 ff. ; CorrespondencCy etc., and Proceedings (Cd. 4554 
and 4S5S, 1909) ; Dupuis, in 18 R. D. I. P. (191 1), 369 ff.; Harris, in $6 Nat. Rev. 
(1910), 393 ff. ; * Ltoonon, La conftr. novate de Londres (1909); Macdonnell, in 
II /. Soc. Compar. Leg., 68 ff., and 26 Rep. I. L. A. (1911), 89 ff. ; Myers, in 4 i4. /. 
(1910), 571 ff. ; • Niemeyer, Das Seekriegsrecht (1910) ; Reinsch, in 190 No. Am. Rev. 
(1909), 479 ff. ; * Renault, La confir. novate de Londres (1909); Stockton, in 3 
A. J. (1909), 596 ff.; Westlake, in 67 Nineteenth Cent. (1910), 505 ff. ; *Int. Law 
Topics (1910). 

^ For minor and contemporary authorities and the titles of works together with 
date of publication, the student is referred to the List of Authorities at the end 
of this volume. 

^ An exception is Lorimer. See note, supra^ on p. 60. 



HISTORY OF INTERNATIONAL LAW 87 

It is perhaps most useful and convenient to divide nineteenth 
century authorities according to nationality. The leading Brit- 
ish treatises in chronological order are those by Manning, Wild- 
man, Phillimore, Twiss, Sheldon-Amos, Creasy, Hall, Maine, 
Lorimer, T. J. Lawrence, Walker, and Westlake. Other British 
writers who have materially contributed to the science of Inter- 
national Law in the nineteenth century are Atherley- Jones, 
Baty, Barclay, Bernard, Bentwick, Cobbett, Harcourt (Letters 
by Historicus), Higgins, Holland, Phillipson, and Spaight. The 
British publicists are, in the main, overwhelmingly positivist 
and historical. 

In any enumeration of British authorities, the name of Sir 
William Scott (later Lord Stowell), the founder of British mari- 
time jurisprudence, deserves a place by itself by reason of the 
important judicial decisions and opinions of that eminent judge. 

Among the authorities contributed by the United States are 
(chronologically arranged) : Kent, Wheaton, the elder Woolsey, 
Lieber, Halleck, Wharton, Field, Dana, W. B. Lawrence, Pome- 
roy,Snow, Moore, Davis, Wilson, Woolsey, Jr., Taylor, Stockton, 
J. B. Scott, Balch, Bordwell, Gregory, Hyde, and Reinsch. The 
judicial decisions of Judges Marshall, Story, and Gray are also of 
great importance. The American writers are essentially posi- 
tivist, though perhaps more under the influence of Continental 
ideas than are British publicists. They are especially distin- 
guished by impartiality and a certain freedom from the national 
bias which characterizes some of the British authorities. 

The leading German and Swiss authorities since 181 5 are Klii- 
ber, Heffter, Bluntschli, von Holtzendorff, Bulmerincq, Geffcken, 
Perels, Lueder, Ullmann, Liszt, Oppenheim,** Stoerk, Nippold, 
and Meili. The strong consciousness of military strength which 
followed the realization of German imity, together with the 
survival of Bismarckian methods and traditions, appears to have 
had a deleterious effect upon the development of International 

* Oppenheim, a German publicist, who has recently succeeded Westlake as 
Professor of International Law at Cambridge, England, has published an important 
treatise in English. His point of view is, however, mainly Continental. Rivier 
should perhaps be classed as a Swiss rather than a Belgian publicist, having been born 
in Switzerland and having ser\'ed as Swiss Consul-General in Bdgiimi, but I have 
classed him as Belgian because the greater part of his work was done at the Univer- 
sity of Brussels, where he was appointed to a professorship as early as 1867. 



88 ESSENTIALS OF INTERNATIONAL PUBUC LAW 

Law in Germany since 1870, though evidence is not lacking that 
German publicists are recovering their former interest in this 
branch of jurisprudence. German idealism, combined with Ger- 
man system and thoroughness, must soon again place Germany 
in the front rank of contributors to our science. 

If Germany has been losing, France has been gaining interest 
in Litemational Law during the same period. Except for the 
special studies and collections of Cauchy, Cussy, Hautefeuille, 
Ortolan, Pistoye et Duverdy, etc., the contributions of French- 
men appear to have been comp>aratively slight and unimportant 
prior to 1870. Since then we have had important treatises by 
Funck-Brentano et Sorel, Pradier-Fod6r6 (in eight volumes), 
Bonfils, Bry, Chretien, Despagnet, Pifideliivre, and M£rignhac. 
There have also been valuable contributions by Diunas, Dupuis, 
Fauchille, F£raud-Giraud, De Lapradelle, Moulin, Pillet, Poin- 
sard, Renault, Rey, and many others. The French publicists of 
the present era are predominantly historical and practical, and a 
dear style combined with scientific method makes their works, 
as a rule, remarkably attractive. 

The best-known modem Italians are Brusa, Cassanova, 
Camazza-Amari, Fiore, Mandni, and Pierantoni. Their views 
have been greatly influenced by Mazzini's teachings on the sub- 
ject of nationality, which some of them have vainly attempted to 
erect into a principle of International Law. 

The leading Spanish and Spanish-American authorities are 
Alcorta, Alvarez, Bello, Calvo (in six vols.), and Olivart. 

Among authorities of other nationalities, the following appear 
especially worthy of mention from the standpoint of general 
reputation: the Belgian publicists, Descamps, Laurent, Nys, 
Rivier, Rolin, and Rolin-Jacquemyns ; the Russians, F. de 
Martens and Kamarosky ; the Dutch, Asser and Ferguson ; the 
Scandinavian, Kleen ; the Austrians, Lamarsch and Neumann ; 
the Portuguese, Pinheiro-Ferreira and Testa; and the Greeks, 
Saripolas and Streit. 

The Japanese have also materially contributed to the Science 
of International Law. The works of Ariga and Takahashi 
enjoy a European and American reputation.** 

" The most important Forerunners of Grotius were : (i) Alfonso the Wise, 
King of Castile (i 252-1 284), who, with the aid of collaborators, compiled a medis- 



HISTORY OF INTERNATIONAL LAW 89 



BIBUOORAPHT 

WMtorj of Int. Law since the Peace of WettphnlU. — i Alcorta, 
Catirs de draii ini. ftib. (1887), ch. 6, sees. 3-4; Alvarez, Le droU itU. 
amiricain (1910); Bex, Essai sur Pivoluiion de droU des gens (1910); 
De Boeck, De la profirieii ennemie sous pavilion ennemi (1882), 1-153 ; Brie, 
Die PortsckriUe des Vdlkerreckls seit dem Vienna Kongress (i8go) ; Hosack, 
Rise and Grawih of the Law of Nations (1882), chs. 8-10; Laurent, J^udes 
sur VkumaniU, Vols. X-XVIU ; i Kleen, De la neutrdiU (1898), Intro- 
duction historique, 1-70 ; Leseur, Introdudion, }} 41-59 ; i Mohl, Geschichte 

val code of law called the Siete Partidas, which contained many rules of land and 
naval warfare. (2) Ciawinni de Legpianc, Professor of Law at Bologna, who (in 
1360) wrote the first substantive treatise upon the laws of war. His work, which 
was not published before 1477, was entitled De beUOf de represaliiSf el de duello, 
(3) Honors Bonet, a Benedictine monk and a Provencal, the author of a remarkable 
book which bears the peculiar title of Varbre des battailles. It was written about 
1385 and contains 132 chapters on the laws of warfare. This work was re£dited 
by M. Nys, in 18S3. (4) Christine de Pisan, perhaps the first advocate of woman's 
rights, who was bom at Venice in 1363 and was educated at the French Court. 
Among the voliuninous works of this remarkable woman, there was one entitled 
Livre des faits d*armes et de chevaUrtej which is largely copied, with due acknowl- 
edgment, from the Varbre des baUailles of Honors Bonet. Both Bonet and Chris- 
tine were far in advance of their age in humanitarian sentiments, but their works 
were nevertheless highly successful. (5) BeUo^ an Italian jurist and statesman, 
who published an important work entitled De re militari et de bello about 1558. 
(6) Victoria (1480- 1546), a Dominican monk and professor at Salamanca, whose 
thirteen Relectiones theologiae were first published in 1557. Two of these, the fifth 
entitled De Indiis and the sixth De jure heUi, deal with the rights of the Indians 
and the laws of war.- Victoria b probably the first modem thinker who con- 
oeived the idea of a society or community of nations based upon natural reason 
and sociability. It was Victoria who first used the phrase jtis inter genies. He 
set up the doctrine of the solidarity and interdependence of States and based the 
rights of the Spanish in the Indies upon the natural rights of commerce and com- 
munication. (7) Ayala (i 548-1 584), a military judge in the service of Philip II, 
who published a treatise in 1 581 on the laws of war and military discipline. (8) The 
great Spanish Jesuit Suarez, who published his Tractatus de legibus in 161 2. In a 
famous passage, which is translated by Westlake (see Chapters, pp. 26-27), Suarez 
for the first time clearly states the view that each State is a member of an inter- 
national community or society of nations which are bound together by the neces- 
sity of mutual aid and oommtmion. He also distinguished clearly between Inter- 
national Law (jus gentium) and the Law of Nature (jus naturale). (9) GentUis, 
a Protestant Italian jurist who was appointed Professor of Civil Law at Oxford 
in 1588. His chief work, De jure bdli, which was published in 1598 and recited 
by Professor Holland in 1877, furnished the model and framework for the first and 
third books of Grotius' De jure belli ac pads. Gentilis is undoubtedly the most 
important of the forerunners of Grotius, but lacks the idealism, passion for justice, 
and broad humanitarianism of the latter. He is the founder of the historical 
school of international jurists, and is also in some other respects (as e.g. in his ad- 
vocacy of the rights of neutrals) in advance of Grotius. 

On the Precursors of Grotius, see especiaUy the voluminous researches of Nys^ 



9© ESSENTIALS OF INTERNATIONAL PUBUC LAW 

und Lileratur der Staatsiuissenschaften (1885), 337-475 ; * Nys, kiudes, espe- 
cially I, 318-406, on '' La revolution fran^aise et le droit int."; * Ompteda, 
Liter (Uurdes Vdlkerreckts (1785) ; Pierantoni, l>ie ForischriUe des Volkareckis 
im XIX Jakrhunderi (1899, trans, by Scholz) ; * Wheaton, History of the Law 
of Nations (1848) , passim; Ibid., Histoire des progrls du droit des gens en 
Europe (4th French ed., 1865). 

Among the treatises which deal with the subject in a more or less satis- 
factory manner are * Bonfils (Fauchille), Calvo, Chretien, Despagnet, 
Fiore, Halleck,* F. de Martens, * M6rignhac, * Nys, and Taylor. 

History of the Science of Int Law. — i Alcorta, Cours, ch. 7 ; i Mohl, 
Geschichte und Literatur der Staatswissenschaften (1855), 337-475; * i Nys, 
Le droit int., 213-328; * Ompteda, Literatur des Vdlkerreckts (1785), 
passim; Nys, Notes sur Vkistoire dogmatique et liter aire de droit int. en Angle- 
terre (1888) ; Ibid., Les tkeories politiques et le droit int. en France jusqu^au 
XVIII svtcle, (1899) ; Ibid., Etudes, passim; Les fondateurs du droit int. 
(1904), ed. par ^et; Rivier, in i Holtzendorff's Handbuch, §§ 85-123; 
Walker, Tke Science of Int. Law (1893), passim; Wheaton, History (1848), 
passim. Among the treatises, see * Bonfils, Calvo, Fiore, Halleck, Manning, 
F. de Martens, * Nys, * Oppenheim, and Taylor. 

For Biblio graphics, see * Bonfils, Mohl, * Nys, Ompteda, * Oppenheim, 
Rivier in Holtzendorff , and * Olivart, Bibliographie de droit int. 

For Treaties, see the Collections and Summaries contained in Dumont, 
Flassan, Gardner, * Hertslet, Koch, * Martens, and the * Archives Diploma- 
iiques. See also the Supplements to Am. J. of Int. Law, the volumes on 
the Foreign Relations of the United States, published as House Documents, 
the British and Foreign State Papers, the Parliamentary Blue Books, and the 
Documents published in the Revue ginirale de droit int. public and the 
Zeitschrift fUr Vdlkerrecht, etc. 

The leading available periodicals on International Law are as follows : 
American Journal of International Law (since 1907) ; Revue ginirale de 
droit international public (since 1894) ; Revtu de droit international et de 
legislation comparSe (since 1869) ; Zeitschrift fur Vdlkerrecht und Bundes- 
stadtsrecht (since 1907); and the Annuaire de Vlnstitut de Droit Int. 
(since 1887). 

Valuable articles and notes on Int. Law also frequently appear in the 
American Law Review, the Green Bag, the Law Quarterly Review, the Law 
Magazine and Review, the Journal for the Society of Comparative Legislation, 
the American Political Science Review, the Archiv fUr dffentliches Rechty 

more particularly his Le droit de la guerre et les precurseurs de Grotius (1882) ; Les 
origines (1894); ktudes (1896 and 1901), passim, and Le droit int., II, 213-232. 
See Les fondateurs de droit int. (1904), ed. by Fillet, for studies of Victoria, Gentilis, 
and Suarez. See also Holland's Studies (1898) and Westlake's Chapters (1894) for 
valuable studies of Ayala, Suarez, Gentilis, etc. Walker's History and Science of 
Int. Law, passim; Rivier, in Holtzendorf's Handbuch, I, §> 85; Wheaton 's History 
(1845), Introduction; and Kaltenbom, Die Vorlaiifer des Hugo Grotius (1848) 
contain much valuable information. 



mSTORY OF INTERNATIONAL LAW 91 

the Annalen des deutschen ReichSy Revue de droit public el de la sciena 
polUique^ and the Journal du droit international privi. 

Jus Naturak. — Ahrens, Das Naturreckt (1846) ; * Bryce, Studies, 
Essay XI, 546-606 ; Burlamaqui, Principes du droit naturel (1747), passim; 
Carlyle, History of MeduEval Political Theory, passim; Clark (A. I.), on 
"Natural Rights/' in 16 Annals of Am, Acad. Soc. and Pol, Sci., 2x2-216; 
* Dunning, Political Theories, A ncient and Medueval and Prom Luther to Mon- 
tesquieu (2 vols.), passim; Gierke, Johannes AUhusius und die naturrecht- 
lichen Theorien, passim; Hibben, in 4 Int. J. of Ethics, 133-160; Holland, 
Jurisprudence (loth ed.), 6, 30-38; Lorimcr, The Institutes of the Law of 
Nations (1883), in 2 vols., passim; 2 Lowell, Government of England, 477- 
488 ; * Maine, Ancient Law (Pollock's ed.), chs. 3 and 4, and Pollock's note 
in Appendix; Mackintosh, The Law of Nature and Nations (1828) (see 
also his Miscel. Works, 27-43) ; Miller, Philosophy of Law, Appendix A, 
376-383 ; Pollock, Expansion of the Common Law; Pulszky, Theory of Law 
and Civil Society, ch. 4, 77-83 ; * Ritchie, Natural Rights, especially ch. 5 ; 
Rutherford, Institutes of Natural Law (1832, 2d Am. ed.), especially Bk. I, 
chs. I, 2, and 5 and ch. 9 of Bk. II; Salmond, in 2 Law Quarterly (1895), 
1 21-143 1 Taylor (T. W.), in i Annals Am. Acad. Soc, and Pol. Sci. (1891), 
558-585 ; 2 Taylor (H. 0.), The Mediceval Mind, ch. 33 ; * Voigt, Das jus 
naturale et gentium der Rdmer (1856) in 4 vols., passim; Walker, History, 
passim; * Willoughby, Poliiical Theories, 249 ff. and 281 ff. ; Ibid., The 
Nature of the State, ch. 5, pp. 89-115. 



PART I 

STATES — THE SUBJECTS OF INTERNATIONAL LAW 

CHAPTER V 

STATES AS INTERNATIONAL PERSONS AND BfEMBBRS OF THE 

INTERNATIONAL COMMUNTTT 

87. States the Main Subjects of Intemational Law. — The 

main Intemational Persons or Subjects of Intemational Law are 
States ^ — the only entities which can become real members of 
the intemational community. Strictly speaking, in inter- 
national relations States alone have legal rights and duties. 
Though the Law of Nations, iu certain cases, regulates relations 
between States and individuals as well as between the States 
themselves and thus appears to deal directly with individuals 
(as in the case of pirates and blockade runners), the laws them- 
selves are rules between States, and it is only as members of a 
recognized political community that individuals can really be 
said to possess intemational rights and obligations.^ 

^ The only important exceptions to this rule are insuigent communities whose 
belligerency has been recognized. These enjoy a certain legal status as Intema- 
tional Persons for purposes of warfare. They may be regarded as inchoate or em- 
bryonic States. See infra ^ § 115. The Papacy is an apparent rather than a real 
exception. See infra, § 89, p. 95. 

'Some publicists (as e.g. Heffter, §§ 14, 58; Lawrence, Principles , 3d ed., 
§§ 42, 54-55 ; Kaufman, Die Rechlskraft des international RecfUs, §§ 1-4 ; Westlake, 
Chapters, p. 2 ; and Wheaton, § 19) claim that individuals also are subjects of Inter- 
national Law ; but this view is obviously based upon a confusion of terms. Per- 
sons and things are objecls, not subjects of the Law of Nations. Westlake (Chapters, 
p. 2) asserts that "it would be pedantic to deny that the pirate and the blockade 
runner are subjects of Intemational Law," but he admits that "it is only by virtue 
of rules prevailing between States that they are so." Rehm (Untertanen als Sub- 
jekte vdlkerrechtliche Pflichten, in i Zeitschrift, 53-55) thinks that individuals partake 
of the nature of subjects of the intemational community as far as intemational 
duties are concemed. He raises the very interesting question whether such Inter- 

92 



STATES AS INTERNATIONAL PERSONS 93 



88. The Essential Characteristics of a State.' — A State is a 
permanent association of people politically organized upon a 
definite territory and habitually obeying the same autonomous 
government. Its essential and distinguishing characteristics are : 
(i) A people permanently organized for political purposes, i.e. 
the maintenance of law, liberty, and a relative equahty of oppor- 
tunity as conditions necessary for individual and social well- 
being. (2) A definite territory containing inhabitants suffi- 

national Commissions as that of the Danube do not create international rights and 
obligations for individuak. We might also ask whether International Unions do 
not partake of the nature of International Persons and create international legisla- 
tion directly binding upon individuals as well as upon States. But at the present 
imperfect stage in the development of the organization and functions of these 
bodies, it is probably safer to deny them the character of international personality 
and to maintain that they only create law binding upon States. 

Heffter (§§ 14, 48) appears to be alone in holding that sovereigns and diplomatic 
agents form a special category of subjects of International Law. They are merely 
organs and representatives of the State in international relations. 

Several of the authorities (Bluntschli, Arts. 23, 360-363, 370; Bonfils, Nos. 157, 
397 ff. ; I Fiore, Nos. 680 ff. ; Heffter, § 58 ; and iF.de Martens, §§ 85-87) maintain 
that man is a subject of International Law by reason of his existence as a human 
being ; and that as such he possesses certain primordial, inherent, fundamental 
rights which are guailEuiteed by the Law of Nations. Such are, e.g. the rights of 
existence, liberty, protection of life and property, emigration and expatriation, 
freedom of worship, etc. These so-called rights of mankind are undoubtedly 
supported by a vast powerful public sentiment ; but, with the exception of the 
rights of protection against the depredations of pirates and slave traders, they 
cannot be said to be guaranteed by the positive Law of Nations. StiU less do they 
confer international personality upon individuals who must ordinarily look to the 
respective governments to which they owe allegiance for the effective protection of 
their international rights and interests. 

For the correct view, see especially Gareis, §53; •Heilbom, System^ S8-138; 
Holland. Jurisprudence (loth ed.), 126, 355, 384 ff. ; * Jellinek, Oejffent. Reckt, 310- 
314; Liszt, §§ 5 and 11 ; 2 Lorimer, 131 ; * i Oppenheim,.§§ 13, 288-293, 344; i 
Moore, Digest, § 3 ; i Rivier, p. 48 ; Stoerk, in 2 Holtzendorff, §§ 113-1 14 ; Triepel, 
Vdlkerrechl u. Landesrecht, 13-21 ; * Ullmann (2d ed.) , §§ 19, 107 ; and Zom, § 6. 

Arts. 3-5 of the Convention relative to the Establishment of an International 
Prize Court adopted by the Second Hague Peace Conference (1907) provide for 
appeal in certain cases by individuals as well as States. This may possibly be 
regarded as a minor exception to the rule that States are the sole subjects of inter- 
national law. On the other hand, it may be argued that individuals even in these 
cases only enjoy this right of appeal as nationals of some particular State. 

' For various definitions of the State, see Bry, No. 28 ; • Bonfils, Nos. 160-162 ; 
I Calvo, § 39 ; • Gamer, Introd. to Pol. Set., 39 ff. ; Heffter, § 15 ; Holland, Jurispru- 
dence (i oth ed.) , 45 ff . ; Jellinek, Das Recht des modemen Staaies ( 2d ed., 1 905) , p. 1 73 ; 
Liszt, § S ; • I Moore, Digest, § 3 ; Pomeroy, §§ 49 ff. ; • i P.-Fod6r^, Nos. 69- 81 ; 
Lawrence (3d ed.). Principles, p. 56 ; Le Fur, in i Zeitschrift, 222 ; i Rivier, 45-48 ; 
* Scott, Cases, 24-37 ; Snow, International Law, § 4. 



^ ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

ciently civilized and numerous^ and resources sufficient to insure 
a certain degree of permanence, stability, and independence* 
(3) A certain degree of sovereignty, or autonomy and independ- 
ence (i.e. relative freedom from a higher or an external control) 
and a government which is habitually obeyed. 

89. Associations or Institutions which do not enjoy Interna- 
tional Personality. — Among associations or institutions which 
do not enjoy international personality may be mentioned : 

(i) Member-States of a Federal Union like that of the United 
States. 

(2) Savages, nomads, pirates, and certain barbarous tribes 
and societies or States which have not as yet attained a sufficient 
degree of civilization or form of political organization adapted to 
the needs of international intercourse. 

(3) Commercial corporations and Chartered Companies * like 
the old British East India or present-day African Companies. 
These companies sometimes exercise enormous political powers, 
even to the extent of making treaties and waging war ; but their 
powers, however great, are merely delegated ones. In the case 
of Great Britain at least, the charters are mere grants of the 
British Crown which may be revoked at any time for sufficient 
cause. Besides, they are at the mercy of the sovereign Imperial 
Parliament which did not hesitate to abolish the old East India 
Company altogether in 1858. Yet it cannot be denied that some 
of these Companies do enjoy a sort of de facto international per- 
sonality, but they have no legal status in international law. 

(4) The same may be said of self-governing colonies or prov- 
vinces like Canada and Australia. They are not only far more 
autonomous than the States of our Federal Union, but they even 
enjoy a degree of external independence, or a sort of de facto 



* No rule can be laid down as to the number of inhabitants or amount of territory 
necessary to the existence or recognition of a State. Sovereignty and international 
personality are enjoyed by States as small as Monaco with a territory of 15 square 
kilometers and 3137 inhabitants (according to i Fiore, p. 269n.)» and as large as 
the British Empire with its 400,000,000 inhabitants and 11,500,000 square miles. 

* Lawrence {Principles, 3d ed., § 54) claims that such privileged corporations 
are subjects of International Law in a double sense : (a) as are individuals and ordi- 
nary corporations ; (6) as occupying a special international position. Lawrence 
does not appear to have succeeded in making converts to this opinion, and has 
somewhat modified his views in his 4th ed., §§ 34, 42. 



STATES AS INTERNATIONAL PERSONS 95 

international personality.* But their constitution, although 
made and enacted by themselves, are technically grants of the 
British Parliament ; and such freedom as they enjoy in connec- 
tion with the negotiation of commercial treaties and the like is 
due to the discretion and wisdom of the British Government. 

(5) Mere racial, social, political, and religious groups or insti- 
tutions, such as nationalities,^ social classes, political parties, 
and churches.* These may and often do exerdse an important 
influence upon international relations, but they do not have 
even de facto international personality. 

(6) The Papacy or the Pope,* who ceased to be a real member of 
the international commimity upon the annexation of Rome by 
Italy and his consequent loss of all temporal power in 1870. 
But the Pope still retains an apparent international personality. 
He still continues to send and receive diplomatic envoys and 
to make ecclesiastical treaties named Concordats. These agree- 
ments are not, however, treaties in the international sense of 
that term ; and, although his representatives enjoy the privileges 
and immunities of diplomatic agents as a matter of traditional 
usage and courtesy, they are ecclesiastical rather than interna- 
tional officials. The Pope as such has no international rights or 

* Thus Canada participates in negotiations with foreign Powers like the United 
States and practically dictates the terms of treaties relative to commerce, interna- 
tional copyright, fisheries, etc. See e.g, i, 2, and 5 Moore, Digest, §§ 168, 182 (p. 
54), 840, etc. 

^ The main champions of the theory that nationalities are real, or at least desir- 
able, subjects of International Law are Italian publicists. This theory is based upon 
the view that nations are the natural units of international relations, and have an 
inherent right to form themselves into States. Even admitting this to be the case, 
the legal status of such units would depend upon their recognition as members of 
the International Community. 

Upon the principle of nationality, see especially DeRoquette-Buis8on,I>« Prin- 
cipe des naiionaliUs (1895). For good criticisms of this theory, see i Nys, 337- 
348 ; I P.-Fod6r6, Nos. 48-68 ; and i M6rignhac, 330 ff. 

For references, see the notes in Bonfils (5th ed.), 9 ; i Fiore, 244 ; i Rivier, 49 ; 
and the Bibliography in De Roquette-Buisson. 

* Fiore (Droit inter, codifii (191 1), Arts. 8, 12, 65, etc.) places the Roman Cath- 
olic Church in the category of international persons. This opinion is shared by 
Chr6tien, No. 77. This view is unworthy of serious refutation. 

* The international status of the Pope is regulated by the Italian Law of Guar- 
antees of 1871. For the English text of this law, see i Halleck (Baker's 3ded.), 
142-145. It guarantees his inviolability and secures him in the enjoyment of 
certain rights and privileges ordinarily enjoyed only by sovereigns. On Uie Inter- 
national Status of the Pope, see the Bibliography at the end of this chapter. 



96 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

duties, inasmuch as he is without temporal subjects or territory. 
He is an object rather than a subject of International Law. As 
an evidence of his exclusion from the society of nations, we may 
point to the fact that he was not invited to either of the Hague 
Peace Conferences of 1899 or 1907. 

90. Extent of the Application of International Law to Barba- 
rians and Savages. — Leading authorities ^ on International Law 
accept Lorimer's division of humanity into three concentric 
circles or spheres — civilized, barbarous, and savage.^^ Only 
States with a certain degree of civilization somewhat resembling 
that of Western Europe and America are held to be entitied to 
full recognition as members of the international commimity. 
This is because a certain amount of mutual understanding and 
reciprocity of interests is essential to advantageous and con- 
tinued international intercourse, and the existence of States with 
the will and capacity to fulfill their international obligations is a 
necessary qualification for membership in the modem family of 
States. 

Although our system of International Law has undoubtedly had 
a Christian origin in the sense that it was developed by the so- 
called Christian nations of Western Europe and bears some traces 
of Christian influence, it should not be described as essentially 
Christian or European in character, as has been done by some 
publicists.^ It is as applicable to non Christian and non- 
European States as to States of Christian and European origin. 
From the standpoint of the Law of Nations, the main test of 
civilization " is to be found in the quality of the existing Govern- 
ment. As far as race and religion are concerned, China, Japan, 
and Turkey are as well qualified for membership in the inter- 
national community as are Russia, Spain, and the United States. 

On the other hand there are publicists ^* who maintain that the 
scope of International Law is as wide as humanity itself and that 
its range extends over the whole earth. This view is in conflict 



" E.g. Bonfils, No. 44; i Nys, 123 f.; and Pillet, in i R. D. P. /. (1894), i ff. 
^^ Lorimer, The Institutes of the Law of Nations (1883), Bk. II, chs. 2 and 17, and 
Bk. III. ch. 2. 

" For example, by Heffter, § 7 ; i F. de Martens, § 41 ; and i Lorimer, Bk. I, ch. 7. 

"* Westlake, Chapters y p. 141. 

^* For example, Bluntschli, Arts. 7-8; and Bonfils, No. 40. 



STATES AS INTERNATIONAL PERSONS 97 

with the actual practice of nations, more particularly with the 
practice of those States exhibiting colonizing or imperialistic 
tendencies. 

The Law of Nations can be only partially applied to barbarians 
or half-dvilized peoples,^^ and still less to savages ; but it should 
be applied to the greatest extent practicable. Treaties with such 
peoples are morally binding, but it cannot be maintained that 
they are, strictly speaking, a legal obligation ; for savages at 
least are almost wholly without that sense of imderstanding and 
capacity for government which would make them the proper 
subjects of legal rights and duties. They could not be held to 
a sufficient degree of accoimtability. But this makes the moral 
responsibility of those who deal with them all the greater. 

91. The Members of the International Community. — The 
most active members of the international community, as 
evidenced by their participation in the work of the Second 
Hague Peace Conference, are, arranged in alphabetical order, as 
follows: The Argentine Republic, Austria-Hungary, Belgium, 
Bolivia, Brazil, Bulgaria, Chile, China, Colombia, Cuba, Den- 
mark, Ecuador, France, Germany, Great Britain, Greece, 
Guatemala, Haiti, HoUand, Italy, Japan, Luxemburg, Mexico, 
Montenegro, Nicaragua, Norway, Panama, Paraguay, Peru, 
Persia, Portugal, Roumania, Russia, San Domingo, San Salvador, 
Servia, Siam, Spain, Sweden, Switzerland, Tiu-key, The United 
States, Uraguay, and Venezuela.^* 

Less active members of the international commimity are 
Abyssinia, Costa Rica, Ethiopia, Honduras,^^ Liberia, and 

" For interesting judicial opinions on the status of half-dvilized peoples like the 
Moroccans and Algerine pirates, see Sir William Scott in the cases of The Helena 
(1801), 4 C. Rob., 4; The Madonna del Burso (1802), 4 C. Rob., 169; and The 
Hurtige Hane (1801), 3 C. Rob., 324. See Scott, Cases ^ 2-3 n. and 45 ff. 

^* All of these States are fully sovereign with the exception of Belgium, Cuba, 
Luxemburg, and Switzerland; but a number of them are of slight international 
importance, as «.f . Haiti, Panama, San Domingo, the Central American States, 
and Montenegro. It is worth noting that of the 44 States represented at the Hague 
Conference of 1907, twenty-one were European, nineteen American, and four purely 
Asiatic. The vote of Montenegro was cast by Russia. 

There is still a disposition to consider China, Persia, and Siam as incomplete 
members of the family of nations ; but in view of the awakening of the East and the 
participation of these States in the work of the Hague Conferences of 1899 and 1907, 
this attitude can scarcely be maintained much longer, at least in re^)ect to China. 

" Costa Rica, Honduras, Ethiopia, and Korea were invited by Russia to send 



98 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

Morocco. The small principalities of Monaco, Lichtenstein, 
and San Marino are fuUy sovereign States ; but, although they 
imdoubtedly enjoy a certain degree of international personality, 
they can hardly be considered full members of the family of 
nations. The same is true of the member-States of the German 
and Swiss Federal Unions and semi-sovereign States " like Annam, 
Crete, Egypt, Timis, and Zanzibar. Afghanistan seems to be 
an example of a fully sovereign half-dvilized State which is 
wholly without the pale of the international community. The 
Soudan is under the condominium (double protection) of Great 
Britain and Egypt. It is probably not a member of the inter- 
national commimity. 

BIBLIOGRAPHT 

States as Intemstional Persons. — * Bluntschli, Arts. 17-37; *Bonfi]s 
(Fauchille), Nos. 154-163 ; i Cobbett, CaseSf 41 ff. ; * Despagnet (4th ed), 
Nos. 69-74; I Fiore, Nos. 275-309; Hall (6th ed.), 17-20; HeflFter 
(Geffcken), § 15; Holtzendorff, in 2 Holtzendorff, 5-1 1 ; Lawrence (3d ed.), 
§§42-44; Ibid, (4th ed), §§34-35; Liszt (3d ed.), §§ i, 5; i F. de 
Martens, §§ 53-54, 63, 84-85 ; i Nys, 63HS8, 116-133, 329 ff. ; * i Oppen- 
hdm, §§ 63-70 ; i Piddelievre, Nos. 71-76 ; i Phillmore, Pt. II. ch, i ; i 
P.-Fod^r6, Nos. 34-81 ; * i Rivier, 7-18, 45-51 ; Ullmann (2nd ed.), §§ 19, 
38 ; I Westlake, 1-5 ; Wheaton, §§ 16 ff. 

International Status of the Papacy. — Bluntschli, De la responsibilili 
et de rirresponsibilUS du pape (1877) ; Bompard, Le pape et le droit des gens 
(1888); Bonfils (Fauchille), Nos. 370-396; Conguy, La papauU en droit 
int, (1906); * Despagnet, Nos. 147-164; i Fiore, Nos. 520-521 ; Flaischlen, 
in 36 R. D. I. (1904), 85 ff. ; * Geffcken, in 2 Holtzendorff, 153 ff. ; Heffter 
(Geffcken), §§ 40-41; Hdlbom, System, 194-21 1 ; * Imbart-Latour, La 
papautS en droit int. (1893) ; Liszt (3d ed.), § 5, pp. 40-41 ; i F. de Martens, 
§84;* 2 M^rignhac, 119-153 ; *i Nys, 297-323; De Olivart, Le pape, 
etc. (1897); *i Oppenheim, §§104-107; i Rivier, 120-123; Ullmann (2nd 
ed.), § 28 ; Veignes, La condition international de la papauU (1905) ; * 1 
Westlake, 37-39. 

For fuller bibliographies, see Bonfils, pp. 205-206 ; and Olivart, BiUi- 
ographie. 

delegates to the Second Hague Conference. Costa Rica and Ethiopia failed to 
send representatives; those sent by Korea were not admitted, owing to the Pro- 
tectorate established by Japan in 1904; while those of Honduras appeared so late 
that they took no part in its work. Scott, The Hague Peace Conferences, II, p. 
180 n. It may be remarked that Costa Rica and Honduras seem to be entitled 
to full membership in the society of nations if they choose to claim this privi- 
lege ; but so much can scarcely be claimed for half-civilized States like Abyssinia, 
Afghanistan, Ethiopia, and Morocco. 

" For a list of Protectorates, see infra, § loj. 



CHAPTER VI 

CLASSIFICATION OF STATBS 

92. Double Classification of States. — From the standpoint 
of International Law, States may be doubly classified into 
Sovereign and Part*Sovereign ; and into Simple, Composite, 
and Dependent. 

93. Sovereign States and Sovereignty Defined. — Sovereign 
States are those which are fully autonomous and independent, 
i.e. whoDy free from all higher control — a freedom not fully 
enjoyed by Part-Sovereign States. Sovereignty^ is one and 
the same power, will, or capacity inherent in the State ; ^ but 

^ It is not necessary for our purpose to enter into any discussion of the many and 
complicated theories respecting the nature of sovereignty which have been held 
'Since the term was introduced into political science by Bodin in 1576. His defini- 
tion of sovereignty as " supreme power (the summum imperium or suprema pokstas) 
over citizens and subjects, unrestrained by the laws," is still perhaps the best, as 
it certainly is the simplest which has ever been formulated. Bodin, De repMicaf 
lib. I, cap. 8. Gxotius (lib. i, cap. Ill, § 7) defined sovereignty as *'the power whose 
acts are not subject to the control of another, so that they may be made void by 
the act of any other human will." For other definitions see Gamer, IrUrod. to 
Pol. Sci.f 239. 

A few recent publicists deny the sovereignty as well as the personality of the 
State. M. Duguit, the leading representative of this school, substitutes the idea 
of solidarity which he declares to be the fundamental fact of all human society. 
Duguit, £tudes de droit public^ I, ch. i. 

' The authorities are divided on the question whether sovereignty is an essential 
characteristic of. the State. 

Among those who answer in the negative are Brie, Staatenverbindungenj 2—16; 
Jellinek, Staatenverbindungen^ 36 ff. and Das Recht des mod. Staates (2 Aufl.), passim, 
especially 472 ff.; Laband, StaatsrecfU (2 Aufl)., 61 ff.; Le Fur und Posener, 2; 
George Meyer, Staatsrechiliche ErUrterungen, 3 ff., and StaatsrecfU (4 Aufl.), 4 ff.; 
von Mohl, Enzyklopadie, 86 ; i Oppenheim, §§ 63 ff. ; Rehm, AUg. Staatslekre, 
63 ft. ; .Schulze, Lekrhuchy 26 ff. ; and Rosin, Souoeraenetaet, etc., 27 ff. 

Among those who answer the question in the affirmative are Borel, Etude sur 
la souv.f 52 ff. and 167; Bomhak, AUg. Staatslekre, 9; H&nel, i StaatsrecfU, 113, 
798 ; Le Fur, Etat fidiraly 395 ff. ; i Mdrignhac, TraiU, 197 ff. ; von Seydd* 
Bayerisfices StaatsrecfU, passim; and Zom, i StaatsrecfU (2 Aufl.), 47 ff., 84 ff. 

* 99 



lOO ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

it has a double aspect — an external as weU as an internal 
face.' 

94. Internal Sovereignty. — On its internal side, sovereignty 
implies such supreme control over everything found on a State's 
territory and such power to regulate the conduct of its subjects 
as may be necessary to realize the purpose for which the State 
exists. To this end it sets its own Umits as to the extent and 
scope of its power or jurisdiction. The Germans call this the 
Competenz-Competenz. 

95. Limitations on External Sovereignty. — On its external 
side, sovereignty may be limited in various ways : 

(i) By the rules, principles, and customs of International 
Law. For a violation of these rules which are binding upon all 
members of the international community, a State is inter- 
nationally responsible. 

(2) The conventional Law of Nations or treaties, subject to 
the clause rebus sic statUibus which is generally implied. For a 
serious breach of its express agreements, a State is responsible 
to those members of the family of nations whose rights have 
been violated. 

(3) Certain delegations of sovereignty and State servitudes,^ 
such as the exercise of financial, judicial, or administrative 
functions by representatives of a foreign Power, and the tem- 
porary occupation of territory by foreign troops, etc. 

(4) Treaties of alliance, guarantee,* and protection by which a 
State obligates itself to give aid to another under certain condi- 
tions or to assist in maintaining a certain state of affairs agreed 
upon. 

(5) Certain relations of suzerainty and vassalage or protection 
and dependence which are supposed not to be in derogation of 
sovereignty. Such were the feudal relations between the Holy 
Roman Empire and the States of Germany between 1648 and 

' On the distinction between external and internal sovereignty, see Bluntschli, 
Arts. 64 ff.; *Bonfils (Fauchille), No. 164; Despagnet, No. 74; Heffter (Geffcken), 
§ 19; Holland, Jurisprudence (loth ed.), 48-491 359-361, 3S4; * Jellinek, Das Rechl 
des mod. Staates, 461-470; *Le Fur, in i Zeilsckrift (1906), 232 ft,; Ibid., L*Elat 
fidiralj 443 ff.; i M6rignhac, 117 ff., 162 ff.; Snow, § 5; Ullmann (2ded.), § 19, 
p. S9 ; Wheaton, § 20. 

^ On International Servitudes, see infra, §§ i66~i68. 

* On Treaties of Guarantee, see infra, § 301. 



CLASSIFICATION OF STATES lOi 

1806, the position of Napoleon I in his relations with the members 
of the Confederacy of the Rhine and other European States like 
Spain and Naples, and the former relations between the Ottoman 
Empire and such States as Bulgaria, Roumania, etc. 

It is generally held that the above limitations or restraints 
are not legal restrictions on sovereignty on the groimds that they 
are mere delegations of power, or that they do not really bind the 
will or power of the sovereign who has thus freely chosen to bind 
himself * through auto4imiiation or auUhdeterminatian. 

But there are many instances where the relations between 
States are of such a nature that it cannot be maintained that all 
the States involved in the relationship are sovereign. To these 
cases the terms ** part-sovereign/' "semi-sovereign," "non-sover- 
eign," and " dependent " have been variously applied. They in- 
clude members of Federal and Real Unions, Confederacies, and 
the majority of those States which are said to be under the pro- 
tection of another State. 

The above analysis shows that external sovereignty or inde- 
pendence must not be imderstood in any absolute or imre- 
stricted sense. Whatever may be the case in theory, in practice 
it is very much Umited ^ and wholly relative. Although it is 
well to insist that States must enjoy a certain degree of autonomy 
and independence in order to possess an international status, the 
Law of Nations must also take cognizance of the other great fact 
of interdependence or the international solidarity of modem 
States and peoples. 

96. Classification of States. — Besides the division into 
sovereign and part-sovereign. States may also be classified into 
simple or unitary, composite, and dependent or semi-sovereign. 

* By means of a legal fiction, the sovereign defeated in warfare is also supposed 
to have freely consented to such humiliating terms (e.g. the cession of territory, 
the limitation of his land or naval forces, and the demolition of fortresses) as may 
have been imposed upon him by a treaty of peace. 

But **\i a State . . . parts with its rights of negotiation and treaty, and loses its 
essential attributes of independence, it can no longer be regarded as a sovereign 
State, or as a member of the great family of nations.'' i Halleck (Baker's 3d ed.), 
p. 69 ; </. I Phillimore, §§ 75-76. 

The mere payment of tribute is not regarded as in derogation of sovereignty. 

' That sovereignty does not imply unlimited power is clearly shown by Jelling, 
Das Rechi des mod. SUuUes, 461-470. Cf. Ihid., StaaUnverbindungen, 35 ff., and 
Gesetz und Verordnung, 196 ff. -See also Le Fur, haifidiral^ 438 ff. ; and i M£ri- 
gnhac, TraiU, 219 ff. 



I02 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

97. (I) Simple States. — Simple Slates are those with a single 
supreme central government representing the will and power of 
the State, " whether it be the will of a sovereign ruler, or the 
collective will of a popular body or a representative assembly."* 

They include such complex incorporate unions with colonies 
and dependencies like the British Empire as weU as simple imitary 
States like Holland and Italy. The majority of Simple States 
are fully sovereign and independent, and enjoy complete inter- 
national personality. 

" The Simple State may be either single, i.e, whoUy separate 
and distinct from any other State, or it may be connected with 
another State by what is called a Personal Union." • 

98. Personal Unions. — A Personal Union consists of several 
States temporarily imited imder the same ruler or sovereign. It 
is not, properly speaking, a composite State, nor does it enjoy any 
degree of international personality. Each State retains its own 
sovereignty, and remains a distinct and separate International 
Person or Subject of International Law."* 

With the annexation of the Congo Free State by Belgium in 
1908, the last existing example of a Personal Union disappeared. 
The other historical illustrations of this form of so-called union 
most frequently cited are : the dynastic Union between Great 
Britain and Hanover extending from 1714 to 1837 ; that between 
the Netherlands and Luxemburg between 181 5 and 1890; that 
of Prussia and the principality of Neuch4tel down to 1857 ; and 
the Union between Spain and the Holy Roman Empire during 
the reign oT the Emperor Charles V in the sixteenth century. 

99. (II) Composite States. — Composite States are permanent 
Unions or associations of two or more States with certain common 
functions and organs of government. From the standpoint of 
International Law, they may be classified into Real Unions, 
Confederacies, and Federal Unions. 

100. (i) Real Unions. — A Real Union exists where several 
States, otherwise sovereign and independent, are perpetuaUy 

' I Moore, Digest, p. 21 

^^ The question has often been raised whether one member of a Personal Union 
may wage war against another. Theoretically , this would be possible; practically, 
it is improbable in the highest degree. 



CLASSIFICATION OF STATES 103 

united under the same dynasty, so that they together form a 
single International Person." Each member of the Union re- 
tains its internal sovereignty and its own constitution ; but there 
are at least common ministers or joint coimdls who advise the 
monarch on questions affecting the interests of the Union ^' as a 
whole, more especially in matters pertaining to war and peace, 
the common finances, the control of the army and navy, and the 
conduct of foreign affairs. 

Since the separation of Norway and Sweden " in 1905, the sole 
surviving Real Union of international importance" is that formed 
by Austria-Hungary, at least since 1867." 

loi. (2) Confederacies. — A Confederacy (Staatenbund or 
league of States) is a permanent association or union of States 
joined together by treaty or compact for purposes of common de- 
fense and general welfare. The Union has organs and functions 
of its own, especially for the conduct of foreign affairs ; but each 

u Nevertheless the separate members may also enjoy a certain degree of inter- 
national personality. Thus Norway and Sweden had separate commercial flags 
and extradition treaties. 

^ Norway-Sweden did not have even a common Minister of Foreign Affairs, 
the king acting through the Swedish Foreign Minister ; in questions touching the 
interests of both kingdoms, the monarch was bound to take the advice of joint 
Councils of State. Matters of interest common to both countries were r^^ulated 
by concurrent identical laws or resolutions. There was no common legislature. 

Austria-Hungary has three common Ministers for Foreign Affairs, War, and 
Finances. There is even a sort of rudimentary common legislature consisting of 
two Delegations or Committees of sixty members, each representing the Austrian 
and Hungarian Parliaments. But the bulk of the legislation common to both coun- 
tries (including the tariff) is in the form of practically identical statutes passed for 
a term of years. In substance these statutes are treaties which are the result of 
negotiations. 

On the "Dual Monarchies,'' see especially Lowell, Governments and Parties in 
Continental Europe, II, ch. 10; Wilson, The State , Ft. DC, and the authorities 
there cited. 

" The authorities differ in their opinions on the nature of the late Union between 
Norway and Sweden, but the majority rightly consider it to have been a Real 
Union. 

^ Oppenheim (I, p. 127 n.) says " there is a Real Union between Saxe-Coburg and 
Saxe-Gotha within the German Empire." This is denied by Jellinek, Staatenver- 
bindungen, 208 f. 

*' There is a difference of opinion as to whether the Pragmatic Sanction of 
1723 created a real or a mere Personal Union between Austria and Hungary. The 
main authorities on the Real Union are Jellinek, Staatenverhindungen (1882), 197- 
248 ; Juraschek, Personal and Real Union (1878) ; and Bltttigen, in i Zeitschrift 
(1906), 237 ff. 



I04 ESSENTIALS OF INTERNATIONAL PUBUC LAW 

State remains otherwise sovereign and independent, and also 
enjoys international personality.^* The main organ of the 
Union is a Diet or Congress exerdsing delegated powers and 
consisting of delegates from each of the member States whose 
votes are usually cast as a unit. The central power does not, 
as a rule, attempt to deal directly with individuals as such ; it 
operates upon and through the member-States themselves. 

There are no existing examples of a Confederacy, but this 
form of International Union has been a very important factor in 
State making. The most important instances are : The United 
Netherlands from 1580 to 1795 ; the United States of America 
under the Articles of Confederation from 1781 to 1789; the 
Swiss Confederacy before 1798 and from 181 5 to 1848; and the 
Germanic Confederajtiom from 181 5 to 1866. 

102. (3) Federal Union. — A Federal State (Bundesstaat or 
Union of States) is a perpetual Union of non-sovereign States 
with a constitution, central organs, and government of its own. 
The member-States possess certain inherent, original, or non- 
delegated powers of their own ; but although both central and 
State governments are supreme within their own respective 
spheres, the central government deals directly with individ- 
uals and practically (if not legally) fixes the limits to its own 
competence, i.e,, the extent and scope of its power and jurisdic- 
tion. Consequently, the Federal Union is fully sovereign and 
independent. The Federal State alone is a complete Inter- 
national Person, but the member States may enjoy a slight 
degree of international personality.^^ 

Existing examples of a Federal Union enjoying de jure inter- 
national personality^* are : The United States since 1789, Switzer- 

^ Most of the authorities deny international personality to the Union on the 
ground that it is not a State, but this view contradicts the facts for the sake of a 
theory. 

'^ This is denied by most publicists, but their opinion on this point is not in strict 
accord with the facts. It is certainly true that the member States of the United 
States are wholly without international personality; but this is not altogether 
true of the German States and Swiss Cantons. The member States of the German 
Federal Union retain the rights of legation and treaty making within certain limits. 
The Swiss Cantons also preserve a very limited treaty-making power. 

" Canada, Australia, and South Africa are examples of Federal Unions without 
de jure international personality. They are not even States from the purely legal 
or technical point of view. 



CLASSIFICATION OF STATES 105 

land since 1848, Mexico since 1857, the Argentine Republic 
since i860, the German Empire since 187 1, Brazil since 1891, 
and Venezuela since 1893.^* 

103. (Ill) Dependent or Semi-Sovereign States. — Dependent 
or Semi-Sovereign States " are States which, without being mem- 
bers of a composite State, retain a certain degree of sovereignty 
and international personality in spite of the fact that in the 
conduct of foreign relations they are at least partially subject 
to the control of another State. This control usually extends 
to internal affairs as well. 

The relation is one which is almost necessarily anomalous, 
more or less vague, and difficult to maintain. It usually ends 
in either annexation or complete independence. There are no 
general or hard and fast rules governing the relationship; for 
the degree of dependence varies in each particular case, and 
ranges from almost complete dependence to virtual indepen- 
dence. 

In general, it may be said that the foreign relations of the 
subordinate State are subject to the control or direction of its 
superior, which usually exercises the most important powers of 
external sovereignty, such as the right of legation and the 
treaty-making power. But the inferior State may share in the 
exercise of these functions to a greater or less degree; and it 
is not necessarily treated as a belligerent in a war to which the 
superior is a party.*^ 

It is customary to subdivide Dependent or Semi-Sovereign 
States into two classes : 

104. (i) States under Suzerainty. — Vassal States or States 
under Suzerainty. These terms are derived from feudalism and 

*• For Bibliographies on the Federal Union, see Hart, Tnlroduction to Fed, 
Gov't., 178-192; and Le Fur, Etal fidSral, x-xvii. 

» The best definition is perhafw that given by KlUber (§ 24) : "When one State 
IS dependent on another in the exercise of one or more of the essential rights of 
sovereignty, but is otherwise free, it is called dependent, or mi-souverain." 

" This was recognized by the British Court of Admiralty , which decided that the 
Ionian Islands (then in the relation of a Protectorate to Great Britain) remained 
neutral during the Crimean War. The Ionian Ships j 2 Spinks, 212. 

There is no reason why the same principle should not be applied to a State under 
Suzerainty which apparently enjoys a greater de facto independence. Turkey did 
not interfere in the war between Bulgaria and Servia in 1885. Egypt issued a 
separate Declaration of Neutrality during the Russo-Japanese War. 



io6 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

were originally used to describe the feudal relation of service and 
protection between the vassal and his lord who became known 
as the former's Suzerain in the course of the fifteenth century. 
They have often been used to characterize the relations between 
the German princes and the Holy Roman Germanic Empire, 
at least during the period' from 1648 to 1895. After becoming 
almost extinct, the term *' suzerainty " was revived in the nine- 
teenth century and applied to the relations between the Otto- 
man Empire and such tributary States as Roumania, Servia, 
and Bulgaria,^ even after these had become practically inde- 
pendent. This terminology is no longer applicable to modem 
conditions, but it still survives in treatises and diplomatic docu- 
ments. 

Theoretically, Vassal States are supposed to possess only 
those rights and privileges which have been expressly granted 
to them, but actually they would seem to be well-nigh inde- 
pendent of their Suzerain. 

This class of States has almost disappeared from international 
relations,** and there only remains the class generally known as 
International Protectorates to be classified under the head of 
Dependent States. 

" All of these States now enjoy a dejure as well as a de facto independence. The 
last to declare its complete independence was Bulgaria in 1908. Up to that time 
Bulgaria was still theoretically a vassal and tributary State, but went to war 
with Servia without consulting Turkey or the Powers in 1885. The conditional 
independence of Roumania, Servia, and Montenegro was recognized by the Great 
Powers at the Congress of Berlin in 1878. 

^ Egypt is generally cited as the main surviving example of a Vassal State. It 
is still nominally under the suzerainty of Turkey, but its administration has really 
been under the sole control of Great Britain ever since the British occupation of 1882. 
It is now (at least since the Franco-British Agreement of 1904) a British Protector- 
ate. 

The only existing Vassal State of any importance appears to be Crete, which 
was recognized as an autonomous State under the suzerainty of the Turkish Sul- 
tan by the Powers in 1899. 

The status of the Transvaal or South African Republic prior to the outbreak of 
the Boer War in 1900 has been a subject of much controversy. In the Convention 
of 1 88 1 it was declared to be under the suzerainty of Great Britain. The word 
'' suzerainty " was omitted in the Convention of 1884, but the Republic remained 
under such restrictions in respect to the exercise of the treaty-making power (Great 
Britain reserving the right of veto) that it must be considered to have been a Brit- 
ish Protectorate. For the provisions of the treaty, see i Moore, p. 28. For 
bibliographies on Egypt and the Transvaal, see Bonfils (Fauchille), 5th ed., pp. 
105 and 109. 



CLASSIFICATION OF STATES 107 

105. (2) Intematioiial Protectorates. — An ItUematianal Pro- 
iectaraie exists where a weak or inferior State has through treaty 
or otherwise been placed under the protection of a more power- 
ful one (at least as far as the conduct of its foreign affairs are 
concerned) for the sake of greater safety, or because it was 
virtually forced into this position. Although the practice of 
keeping client or vassal States in a condition of dependence or 
partial subjection was freely practiced by the Romans as a 
means of conquest, the modem Protectorate is ostensibly in- 
stituted for the benefit of the protected State. But it is fre- 
quently employed as a means of exploitation and disguised 
conquest even in modem times. 

The position of the protecting State is supposed to be like 
that of a tmstee, and his obligations resemble somewhat those 
of a guardian toward his ward. But it must be admitted that 
the conditions on which the tmst is held are often violated. 
The main duty is that of protection, and the protector incurs a 
certain measiu'e of international responsibility for the conduct 
of his ward which gives him the right of intervention in the 
internal as well as the external affairs of the protected State. 
The dependent State is bound to submit to such control and 
allow such intervention as it has agreed to permit; and it 
usually retains only a slight degree of international personality. 

In contradistinction to States under Suzerainty, treaties 
made by the protector do not apply to States imder a Protec- 
torate unless it is expressly so stipulated ; and protected States 
retain all rights and privileges which have not been expressly 
yielded. But, as a matter of fact, they are usually much more 
dependent than vassal States have been. Neither in principle 
nor in practice is there any clear or fundamental difference 
between the two classes. The Protectorate is in fact the 
modem form of clientage or vassalage. 

Existing International Protectorates** are those of Great 
Britain over Egypt, Zanzibar, and the three States of Borneo ; 
of France " over Tunis, Annam, Cambodia, and Morocco ; of 

** The main historical Protectorates of the nineteenth century were those of 
Great Britain over the Ionian Islands (1815-1866) and the Transvaal (1881- 
1902); and of Austria, Prussia, and Russia over the "free and independent'' city 
of Cracow (1815-1846). 

» Madagascar, formerly a French Protectorate, was annexed by France in 1896. 



lo8 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

Germany * over the king of Togo, a portion of New Guinea, and 
the Marshall Archipelago; of Russia over the Khanates of 
Khiva and Bokhara ; of Japan over Korea ; ^ and of the United 
States over Cuba.® 

io6. Distinctions between an International Protectorate, a 
merely Protected State, and a Colonial Protectorate. — Inter- 
national Protectorates should be distinguished from merely pro- 
tecied States like Panama ^ and the San Marino Republic ^ on 

With the consent of England, France also assumed a Protectorate over Morocco in 
1904. Germany intervened, and the Congress of Alg6pras of 1906 guaranteed the 
economic freedom and territorial integrity of this country. But in 191 1 Germany 
recognized the Protectorate of France over Morocco in return for territorial conces- 
sions in the French Congo region. 

Ethiopia is another African State whose independence was guaranteed by Eng- 
land, France, and Italy in 1906. Italy exercised a Protectorate over Abyssinia for 
some years before her crushing defeat by King Menelek in 1896. Owing to the 
intrigues of Russia, England was also forced to give up the Protectorate which she 
had established over Afghanistan in 1879. Recent events seem to show that Russia 
and England exercise a virtual Protectorate over Persia. 

** It is doubtful whether the so-called "administrative" Protectorates of Ger- 
many are real International Protectorates. See Meyer, Die Stdlung der deulschen 
Sckutzgebiete (1888), 69 ff. ; and Despagnet, Essai sur les protectorats (1896), 167 ff. 
They should perhaps be classed as Colonial Protectorates. See infra, § 185. 

^ On the International Status of Korea as a Protectorate of Japan's, see Rey, 
in 13 R. D, I. P. (1906), 40-58. This Protectorate, established in 1905, ceased in 
19 10 when Korea was annexed by Japan. 

" Cuba 13 free to conduct her own external and internal affairs, but her rela- 
tions with the United States are nevertheless those of a Protectorate. According to 
the Piatt amendment of 1901 (which was incorporated into an ordinance appended 
to the Cuban constitution and embodied in the treaty of 1 903-1 904 between Cuba 
and the United States), '' the Government of Cuba shall never enter into any treaty 
or other compact with any foreign power or powers which will impair or tend to 
impair the independence of Cuba," nor ''assume or contract any public debt" 
for the payment of which the ordinary revenues of the island shall be inadequate. 
Cuba also agreed that " the United States may exercise the right to intervene for 
the preservation of Cuban independence, the maintenance of a Government ade- 
quate for the protection of life, property, and individual liberty, and for discharging 
the obligations with respect to Cuba imix>sed by the treaty of Paris on the United 
States, now to be assumed and undertaken by the Government of Cuba." 6 
Moore, Digest, § 910. 

The United States has intervened in Cuba in pursuance of the rights thus granted. 
For the view that Cuba remains a fully sovereign State, see Benton, Int. Law and 
Diplomacy of the Spanish- American War, 290-291. See Whitcomb, La situation 
int. de Cuba (1905), ch. 5, for the view that Cuba is a part-sovereign State. 

*• For the text of the Convention of 1903 between the United States and Panama, 
see Supplement to 3 ^4. /. 130 ff. 

The United States guaranteed the independence of Panama (Art. i); but, 
excepting in the Canal Zone, the sovereign rights of Panama remain unimpaired. 



CLASSIFICATION OF STATES 109 

the one hand, and from Colonial Protectorates on the other. 
The latter, in which the inhabitants and territory protected do 
not form States within the modem meaning of this term, will 
be discussed imder the head of " Modes of Acquiring Territory." '^ 

Some of the authorities place the North American Indian 
tribes and the vassal or protected Princes and States of India 
imder the head of International Protectorates. They are un- 
doubtedly, in a sense, Protectorates, but certainly not Inter- 
national Protectorates. Neither do they fit into the category 
of Colonial Protectorates. They seem to constitute a class by 
themselves.** 

107. The North American Indians. — Prior to 1871, the 
North American Indian tribes were regarded by the United 
States as " domestic dependent nations " in a " state of pupil- 
age resembling that of a ward to his guardian." " They were 
held to possess certain rights of occupancy to the soil, but the 

Panama is undoubtedly under the protection of the United States and, although 
the de facto political and economic relations between the two Republics are of such a 
nature as to place Panama in a state of actual dependence (even greater than in the 
case of Cuba), we cannot speak of a Protectorate in the legal or technical sense of 
this term in the case of Panama. 

On the International Status of Panama, see Rougier, in 11 R. D. I, P. (1904), 
Ckronique, 604 ff. 

^ A good historical example of the merely protected State is the Confederacy of 
the Rhine (1806-1813), which recognized Napoleon I as its " Protector." Its mem- 
bers were, however, virtually client or vassal states. 

The small Republic of San Marino is under the "exclusive protective friendship'* 
of Italy, but is not a Protectorate. 

The tiny principality of Monaco is now wholly unprotected as well as sovereign. 
The little so-called Republic of Andorra in the Pjrrenees, which is not even a State, 
is under the joint protection of France and the Spanish Bishops of Urgel. It 
remains, as Lawrence (Principles (3ded.), p. 73) puts it, "an antiquarian curiosity 
and a jural puzzle." 

»*See infra, § 185. 

" An Act of Congress, dated March 3, 1871 , declared: " No Indian nation or tribe 
within the territory of the United States shall be acknowledged or recognized as an 
independent nation, tribe, or power with whom the United States may contract 
by treaty ; but no obligation of any treaty lawfully made and ratified with any such 
Indian nation or tribe prior to March 3, 187 1, shall be hereby invalidated or im- 
paired." But agreements with Indian tribes, subject to the approval of Congress, 
have been made since the passage of this act, i Moore, Digest, § i7> P- 37- 

" See especially Chief Justice Marshall, in Cherokee Nation v. Georgia (182 1), 5 
Peters, i, and Worcester v. Georgia (1832), 6 Peters, 515 ; Justice Gray, in Elk v. Wil- 
kins (1884), 112 U. S. Rep. 94; and Justice MiUer m U, S. v. Kagama (i886), 118 
U. S. Rep. 375. 



no ESSENTIALS OF INTERNATIONAL PUBUC LAW 

actual title to their lands, which was originally based on dis* 
covery and settlement,** had become vested in the National 
Government by virtue of the rights of succession. As long as 
they remained connected with their tribal organizations, they 
were regarded as " domestic subjects " ; but it was held that 
'' an Indian treaty, when duly solemnized, is as much a law of 
the land as is a treaty with a foreign power." ^ 

io8. The Princes and States of India. — Closely analogous 
to the status of the North American Indian tribes before 1871, 
and yet differing from it on some points, is that of the Princes 
and States of India in their relations with Great Britain. Like 
the Indian tribes in the United States, the six hundred pro- 
tected Princes and States of India have no international rela- 
tions with foreign Powers or with each other. The preamble 
of an Act of Parliament ^ of 1876 described them as in " alliance 
with Her Majesty," and they are held to be entitled to British 
protection on the high seas or in foreign parts. They cannot 
even send representatives to Calcutta, but must commimicate 
with the British Government through the British representa- 
tives at their courts. In 1891, the official Gazette published*^ 
by the Government of India declared : 

" The principles of International Law have no bearing upon 
the relations between the Government of India as representing 
the Queen Empress on the one hand, and the native States 
under the suzerainty of Her Majesty on the other. The para- 
mount supremacy of the former presupposes and implies the 
subordination of the latter." ® 

"^ Chief Justice Marshall, in Johnson v. Mcintosh (1823), 8 Wheaton, 543, and 
Scott, 71. 

** I Moore, Digest y p. 37. On the Status of the American Indian y see * 2 Butler, 
Treaty-making Power y ch. 14; i Calvo, § 71 ; Chretien, No. 249; i Fiore, No. 343; 
I Halleck (Baker's 3d ed.), 75-78; Lawrence, i Commentaire, 264 f.; *i Moore, 
Digcsly §§ 15-17; * Scott, Cases J 398-412, or Snow, CaseSy 230-241; 2 Wharton, 
Digest y ch. 8, §§ 208-211; Wheaton, § 38 (Atlay*s ed., § 38 a and Dana's ed., 
note 24) ; and i Willoughby, The Const. Law of the U. S. (1910), ch. 20. 

■• 39 and 40 Vict., c. 46. See Westlake, Chapters y p. 212. 

" Ibid., p- 213. 

" Cited by Westlake, i Int. LaWy p. 42, and Chapters y pp. 215-216. Westlake, 
our main authority on this subject, quotes freely from Lee- Warner, The Protected 
Princes of India ; and Tupper, Our Indian Protectorate, 

On thie Indian Princes, see also Hall, 27-28 n.; i Rivier, 88-89; Wheaton. 
(Atlay's ed.), § 38 c. 



CLASSIFICATION OF STATES m 

109. (IV) Neutralized States. There is another class of States 
which does not fit well into our scheme of classification. This 
is the neutralized State. Neutralized States are those whose 
neutrality, independence,** or territorial integrity are perma- 
nently guaranteed by an international agreement of the Great 
Powers on condition that they agree never to go to war except 
in case of attack, and never to assume international obliga- 
tions (as e.g. enter into a treaty of alliance or guarantee) 
which might lead them into hostilities. The purpose of such 
permanent neutralization has generally been the maintenance of 
the balance of power in Europe by removing a temptation to 
aggression and creating a Buffer-State between rival Powers. 
A violation of the neutrality of a permanent neutralized State 
imposes upon the guaranteeing Powers the duty of interven- 
tion * in behalf of the injured State. 

The permanent neutralization^^ of States should be distin- 
guished from the status of mere temporary neutrality during 
war on the one hand, and from the possible neutralizatioa of 
parts of a State,^^ or of rivers, straits, canals, lakes, gulfs, and 



" Indqxndence is not expressly guaranteed in the case of SwitzerUnd. Unlike 
Switzerland, the integrity and inviolability of the territory of Belgium was not 
expressly guaranteed. Luxemburg was merely given a guarantee of neutrality. 
But guarantees of independence as well as of territorial integrity and inviolability 
must be implied ; for, as Westlake (Int. Law^ I, p. 28) justly remarks: ''The territory 
of a State cannot be violated without infringing its neutrality, and it may be added 
that a similar infringement would result from an attack on its independence." 

^ There is a difference of opinion among the authorities as to whether in such a 
case as the "collective'' guarantee of the neutrality of Luxemburg, the guarantors 
are bound to act singly or separately, should any of them decline to join in common 
or collective action. For the contrary views of Bluntschli and Lord Derby, see 
Hall (6th ed.), 337-338. For a refutation of Lord Stanley's (Derby's) view that 
the guarantors are not bound to act separately, see Piccioni, Essai sur la 
neutraliti (2d ed., 1902), 21 ff. Such a doctrine would deprive the guarantee 
of efficacy. 

^ We might also distinguish between permanent and temporary neutralization, 
as in the case of China during the Russo-Japanese War. See Hershey, 248. 

^ The most conspicuous example of the neutralization of a part of a State is that 
of a portion of Savoy which was included in the neutralization of Switzerland in 
1815. In i860. Savoy, until then belonging to Sardinia, was ceded to France, 
which thus succeeded to the rights and duties pertaining to the neutrality of these 
provinces. These duties were recognized in 1883, when the French Government 
discontinued the construction of fortifications near Geneva in deference to the com- 
plaints of the Federal Council of Switzerland. There is no agreement as to how far 
these rights and duties extend in the case of a neutralized province. 



112 ESSENTIALS OF INTERNATIONAL PUBUC LAW 

seas on the other.** By analogy the term has also been extended 
to certain persons and things like surgeons, hospitak, and hos- 
pital ships in time of warfare.^ 

► The authorities seem to be about equally divided on the 
question whether permanently neutralized States remain fully 
sovereign. On the one hand it is argued that neutralization 
** does not carry with it the renunciation of any faculty of state 
life. It is merely an undertaking not to do certain things, and 
no more impairs sovereignty than does an undertaking not to 
interfere in a particular war. . . . Besides, it is necessary 
that for every part of the civilized world the full powers of 
sovereignty should exist." ** On the other hand, it is justly 
urged that to permanently deprive a State of the right to de- 
clare war or contract alliances at will, is manifestly a serious 
restriction on external sovereignty or freedom of action such 
as fully sovereign States enjoy. This is a fact which no amount 
of plausible argument can extinguish.^ 

The sole examples of permanently neutralized States are 
Switzerland *^ (since 1815), Belgium (since 1831), Luxemburg** 
(since 1867) ,*• and perhaps Norway in 1907.^ 

Another case of neutralization of a part of a State is that of the two Ionian 
islands of Corfu and Paxo, together with their dependencies, which were declared 
permanently neutral by England, France, and Russia when the group to which 
they belong were annexed by Greece in 1864. The king of Greece on his part 
agreed to ''maintain such neutrality.'' 

^ See infray pp. 202 n and 211 and n. 

** See infra, §§ 369 flf. and 416 flf. 

^ This is the argtmient of Westlake, I, pp. 2^29. 

^ It is not merely that a neutralized State is not fully sovereign ; it is less free 
in its choice of means than are other States. Oppenheim (I, p. 143) points out that 
a State does not lose any part of its sovereignty by concluding a treaty of arbitra- 
tion. True, but suppose it were generally bound to arbitrate all or any class of 
international disputes, while other States retained the right to go to war. Would 
such a State be fully sovereign ? If we had a general treaty of obligatory arbitration, 
the contracting States would remain sovereign because all would be equally and 
reciprocally bound. 

M6rignhac (II, p. 43) urges that treaties of guarantee do not destroy sovereignty. 
Such treaties do not necessarily imply a limitation of sovereignty — not unless the 
State whose rights are guaranteed binds itself permanently not to exercise impor- 
tant or essential sovereign powers such as other States enjoy. 

^ The neutrality of Switzerland had been recognized \e.g, by France) long be- 
fore it was guaranteed by the Congress of Vienna. 

^ Luxemburg was forced to demolish her fortresses, and is not even permitted 
to keep an armed force. 

^ The most important historical instances of permanent neutralization usually 



CLASSIFICATION OF STATES 113 

BIBUOOKAFH7 

CUssillcatioii of States. — Bluntschli, Arts. 70-80 ; * Bonfils (Fau- 
chiUe), Nos. 165-194; Borel, Elude sur Vitat fidSralif (1886); Brie, 
SUuUenverbindungen (1886) ; Bry, Nos. 32-46 ; i Caivo, $§ 44 £f. ; Chretien, 
Nos. 245-275; Creasy, 135-142; Despagnet, Nos. 75-78, 109-146; i Fiore, 
Nos. 332 fif. ; * Garner, IfUroduclion to PdUkal Science^ ch. 5, pp. 136 ff. ; 
Hall, (6th ed.), 23-29 ; i Halleck (3d ed.), 70 ff. ; Hefftcr (Geffcken), §§ 18- 
21 and Geffcken's note on pp. 53-54; Holtzendorff, in 2 Handbuch, 98- 
141; * Jellinek, Das Recht des mod. iStaateSy ch. 21 (3d ed.), pp. 719-767; 
Ibid,f Staatemerbindungen (1882); Klttber, §§ 29-35; T. J. Lawrence, 
Principles, §§ 45-52; Idem^ (4th ed.), §§ 37-43 ; W. B. Lawrence, i Com- 
mentaire, 225-345 ; * Le Fur, Elal fidtral (1896) ; Liszt, § 6 ; * i F. de Martens, 
§§ 55"62; G. F. de Martens, §§ 16-22; * 2 M6rignhac, 6-226; * i Moore, 
Digest, §§ 5-15 ; * I Nys, 349"398 ; * i Oppenheim, §§ 85-1 11 ; i Phillimore, 
Pt. II, chs. 2-5; I Pi6delievre, Nos. 76-114; Pomeroy, §§ 58-66; i P.- 
Fod6r6, Nos. 90-123; * i Rivier, 75-120; Scott, Cases, 45-53; Snow, § 6; 
Taylor, §§ 120-144; i Twiss, §§ 23-81 ; Ullmann (2d ed.), §§ 20-27; * i 
Westlake, ch. 3 ; Wheaton, §§ 34-59. 

Protectorates and Vassal States. — Baty, ItU, Law in Sotdh Africa 
(1900), ch. 2; Boghitch6vitch, BalbsouverUniUlt (1903); * Despagnet, 
Essai sur les protectorats (1896) ; Engelhardt, Les protectorats (1896) ; 
* Heilbom, Das volkerrechlliche Protectorat (1891) ; Jenkyns, British Rule 
and Jurisdiction beyond the Seas, ch. 9 ; Gairal, Le protectorat international 

cited are the "free and independent city" of Cracow (181 5-1 846) and the Congo 
Free State (i 885-1908). The neutrality of Cracow was guaranteed by Austria, 
Prussia, and Russia. It was annexed by Austria in 1846. 

The Congo Free State was not a case of perfect neutralization. At the West 
African Congress of 1 884-1 885, Mr. Kasson, the American plenipotentiary, pro- 
posed that the territories comprised within the conventional Congo basin be per- 
manently neutralized. After much discussion, the Powers merely agreed (see 
Arts. lo-i I of the Final Act of the Conference, in Supplement to 3 i4 . /. 14) " to respect 
the neutrality" of the region on certain conditions and to "use their good offices" 
to this end. In 1885 the Congo State declared itself perpetually neutral. It will 
be interesting to observe the effect of the recent (1908) annexation of the Congo 
Free State by Belgium upon the status of this territory. It is the first example of 
"a neutralized State holding a colony within neutralized territory." See Reeves 
on "The Origin of the Congo Free State, " in 3 i4 . /., 99 ff . For numerous references 
on the Congo, see Bonfils (Fauchille) (5th ed.), notes on pp. 89 and 11 8-1 19. 

The first historical instance of attempted permanent neutralization was that of 
the island of Malta, which was declared neutral by the treaty of Amiens (Art. 10) 
between France and England in 1801-1802. But this treaty was never executed^ 
See Morand, mi R.D. I. P. (1894), 522 ff. 

*<^ By a treaty signed at Christiania on Nov. 2, 1907, the leading European Powers 
agreed to respect the integrity of Norway and to support the Norwegian Govern- 
ment in case this integrity should be " threatened or impaired by any Power what- 
soever." This appears to be a case of imperiect neutralization. See Gamer, 
Introduction to Political Sciewe, 164. 



114 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

1896) ; Pic, in 3 R, D. I. P. (1896), 613-647 ; Pillet, in 2 ^. Z). /. P. (1895), 
583 ff. ; De Pouvourville, va 4 R, D, I. P, (1897), 176 ff. ; Sinnagieff, 
Des iUUs mi'souverains (1889) ; Stubbs, Suzerainty (1882) ; *Wilhdm, in 17 
J. D. I, P. (1890), 204 ff. ; Ibid., in 22 /. D. I. P. (1895), 760 ff. 

For a more complete bibliography, see Bonfils (Fauchille), pp. 96 ff. 
of 5th ed. 

Neutralized States. — The most important or accessible articles and 
monographs are : * Descamps, La neulraliti de la Bdgique (1902) ; £3rschen, 
on '*' La Position du Luxembouig," in 31 R. D, /. (1899), 5 ff. ; Hagerup, in 12 
R, D, /. P. (1905). 577 ff. ; Hilty, Du Neutraliidi der Sckweiz (1889) ; Nys, 
Notes sur la neutrdUi^ in 2 Etudes, 47-163 and 32 and 33 R, D, /. (1900 
and 1901), 461 ff. and 15 ff. ; *Piccianiy Essaisur la neutralili (2d ed., 1902) ; 
Regnault, Des effels de la neutraliU (1898) ; Schweizer, Geschickte der sckweiz. 
NeuiraliiiU (1893-1895) ; Tswettcoff, De la situation juridique des Hals neu- 
tralist (1895) ; and Westlake in 33 R. D. I. (1901), 389 ff. For bibliog- 
raphy, see Bonfils (5th ed.), pp. 195-196. 



CHAPTER Vn 



THB ORIGIN, RECOGNITION, AND CONTINUITY OF STATES 



I lo. The Origin and Existence of the State. — It is not 
iKrithin the province of the Law of Nations to deal with the 
causes of the origin or of the existence and growth of States — 
a subject which belongs to the province of history and general 
political science rather than to that of international jurispru- 
dence. It is impossible to lay down juridical rules which shall 
determine the legality of the existence of an independent po- 
litical community. The State is an historical and political 
fact,^ the creator rather than a creature of law ; but it is pos- 
sible to determine, in a general way, the rules which should 
govern their recognition by, or admission to, the international 
community. The most important of these is that they must bear 
the essential marks or distinguishing characteristics of a State 
as set forth in the previous chapter.' 

The State exists independently of its recognition,' but some 
form of recognition is necessary in order to secure its admis- 
sion into the family of nations. There is, strictly speaking, 
no rig/U to admission,^ though there are many cases in which 

^ Jellinek, Das Recht des mod. Staates (2d ed.), 265 ff. C/. Ihid,, Staatewoerhin- 
dungen. See also Liszt (3d ed.), § 5, p. 42 n.; i Nys, 70 ff; i Rivier, 55 ff.; and 
XJllmann (2d ed.), § 29, p. 123. 

* See supra, § 88. 

* In 1877 the British governor of Florida made a grant of land within the limits 
of one of the old thirteen Colonies. Fifty years afterward, the Supreme Court 
of the United States held that the title to the land in controversy had passed to the 
United States prior to the date of the grant. 

"It has never been admitted by the United States that they acquired anything 
by way of cession from Great Britain by that treaty of Peace, 1783. It has been 
viewed only as a recognition of pre&dsting rights.'' . . . Harcouri v. GaiUard 
(1827), 12 Wheat. 523, 527. Cf. Mcllvaine v. Coxe*s Lessee, 4 Cranch, 209, 212. 

* Consequently, there is no legal dtUy of recognition. This is the opinion of 

"5 



ii6 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

recognition cannot long be withheld without danger of serious 
or embarrassing consequences. 

III. Modes of Recognition. — The members of the inter- 
national community are such by virtue of original member- 
ship in the European family of nations, or their subsequent 
admission. Recognition of such admission may be tadt or 
express. 

A new State may be tacitly or impliedly recognized by an 
older State through the conclusion of a treaty, the sending or 
reception of diplomatic agents, or the establishment of such 
official relations as indicate an intention to treat it as an Inter- 
national Person.^ Instances of tacit admission are Russia, the 
United States, Japan, and China. It is impossible, in some 
cases, to fix a definite date of admission. 

Express or formal recognition may also assume various forms. 
It may be formal and collective, as in the case of Turkey which 
was formally admitted to full membership • to the society 
of nations by the Great Powers at the Congress of Paris in 
1856. It may also be conditional, as in the case of the Balkan 
States which were admitted at the Congress of Berlin in 1878 on 

Bonfils, No. 201; Liszt, § 5i p. 43; i F. de Martens, § 64; i Oppenheim, § 71; 
and Le Normand, La reconnaissance intemationale (2d ed., 1899). 

But the contrary view is maintained by equally good authorities. See e.g. 
Bluntschli, Art. 3; Hall (5th ed.), 20 and 82; i Pi^eli^vre, No. 122; Pomeroy, 
§ 215; I Rivier, 57; and Ullmann, §30, p. 125 of 2d ed. 

The right and duty of recognition seems to be of a moral nature. Several of 
the authorities (see e.g, i P.-Fod^6, No. 1144) speak of a theoretical right of recog- 
nition which may be ignored in practice. 

' For example, the flag of the Congo Free State was recognized by the United 
States in 1884. 

It is a disputed question whether the appointment and acceptance of a consul 
implies recognition. See e.g. Hall (5th ed., 88 n. and 320) in the negative and 
I Oppenheim (§ 428) in the affirmative. It would seem from a study of historical 
instances that the mere appointment of consuls does not imply recognition, but that 
the granting of an exequatur or document authorizing them to act does involve such 
recognition. The British Government appointed consuls to various South American 
States at least eighteen months before their recognition by Great Britain, and a 
number of South American States were recognized by the United States through 
the issuance of exequaturs. See i Moore, Digest ^ pp. 79, 90-^1. The British con- 
suls continued to periorm their functions during our Civil War. 

* This membership has, however, been somewhat qualified in practice. It can 
scarcely be maintained that Turkey has been actually treated as a fully sovereign 
and independent member of the family of nations in all respects. This was the 
case at least until the recent Turkish Revolution of 1908. 



ORIGIN, RECOGNITION, AND CONTINUITY OF STATES' 117 

condition^ that they impose no religious disabilities on their 
subjects. 

Though tadt or express recognition binds only the recog- 
nizing State, it practically amounts to a certificate of admission. 

112. The Conditions under which New International Persons 
may Arise. — New International Persons may arise in conse- 
quence of the following events : 

(i) The division of an existing State or International Person 
into several separate international entities, as in the case of 
the recent separation of Norway and Sweden,^ or the successful 
secession of members of a Federal Union. 

(2) The Union of a nimaber of States into a Confederacy or 
Federal State, as in the case of the United States, the Swiss 
Cantons, and the German Empire. 

(3) The entrance of hitherto barbarous or half-civilized or 
Oriental States into the international community, as in case of 
Russia under Peter the Great in the early part of the eighteenth, 
and of Japan and China ^ in the latter part of the nineteenth 
century. 

(4) The erection of a new State in a region previously un- 
civilized, as in the case of the Transvaal or South African Re- 
public (1852-1902), the Congo Free State (1884-1908), and 
Liberia (recognized since 1847). 

(5) The formal recognition of new members by international 
agreement of the Powers, as in the case of the Balkan States 
in 1878, the Congo Free State in 1885, and of Belgium in 1831. 

(6) The recognition of insurgent political communities which 
have revolted from the parent country. 

The recognition of the latter class of commimlties has given 
rise to more definite rules and a more regular and consistent 
practice than in most of the other cases. Consequently, these 
merit a somewhat extended discussion. 

' It appears to be agreed that the violation of such conditions does not render 
the recognition invalid, for recognition cannot be withdrawn if once given. It 
might possibly justify intervention or even war in certain cases. It certainly 
would justify protest, suspension of diplomatic relations, and perhaps reprisab. 

* As indicated above (p. 103 n.)f Norway and Sweden were not wholly devoid of 
separate international personality prior to their separation, but each State is now 
a complete International Person. 

' As in the case of Turkey, it may be questioned whether the membership of 
China is not somewhat qualified in international practice. 



Ii8 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

The recognition of insurgent communities may be considered 
in three successive stages. These will be discussed in turn. 

113. (I) Recognition of Insurgency. — A Status of Insurgency 
may be recognized when an insurrection with a political pur- 
pose has assumed the proportions of a war '^ in a material sense/' 
and when it seriously interferes with the exercise of sovereignty 
or with normal foreign intercourse. Though it is held that such 
a contest (one in which belligerency proper is not recognized) 
does not amount to dvil war " in a legal sense," ^® it has passed 
beyond the state of a mere mob outbreak or riot into that of 
an organized insurrection with responsible leaders, etc. 

The recognition of a status of insurgency aflfects the rela- 
tions between all parties concerned. Such recognition by the 
parent State implies the admission of certain rights and duties 
relating to the conduct of hostilities, as e.g. the treatment of 
combatants as prisoners of war instead of as traitors and pirates.^^ 
It also probably frees the parent State from a certain measure 
of responsibility for the acts of the insurgents, and imposes 
certain obligations upon the latter. 

1 14. Effects of a Recognition of Insurgency. — Recognition 
of insurgency by third Powers implies certain obligations on the 
part of the latter, such as the enforcement of neutrality laws," 

10 The distinction between the "recognition of the existence of war in a material 
sense and war in a legal sense" was made by Chief Justice Fuller in the case of The 
Three Friends (1896), 166 U. S., and Scott, 758. The status of insurgency was also 
recognized by President Cleveland in his Proclamation of 1895 enjoining a strict 
observance of our Neutrality Laws during the second Cuban insurrection which 
broke out in that year. A similar British Proclamation had been issued in the 
Bahamas during the first Cuban insurrection in 1869. See i Moore, Digest ^ p. 242, 
and the case of The Salvador (1870), 3 Privy Council Rep. 218, and Scott, 743. 
In 1899 the German Consul-general at Cape Town issued a proclamation impliedly 
recognizing the insurgency of the Boers. See Campbell, Neutral Rights and Obli- 
gations in the Anglo-Boer War^ in John Hopkin's Studies for 1908, p. 47. 

" On the question " Can insurgents be treated as Pirates ? " s^ infra, § 214. 

" See cases of The Salvador and The Three Friends, cited above. In 1900 the 
Institute of Int. Law declared that " in case of an insurrectionary movement or civil 
war. International Law imposes upon third powers certain obligations toward 
established and recognized governments which are in conflict with an insurrection." 
The supply of arms, munitions of war, and subsidies to the insurgents is prohibited ; 
and it is especially forbidden to permit the " organization within its territory of 
military expeditions hostile to established or recognized governments." See 18 
Annuaire (1900), 227. For Proclamations by President Taft regarding disturb- 
ances in Mexico and the export of arms from the United States, see Supplement 
to 6 A. J. (191 2), 146-148. 



ORIGIN, RECOGNITION, AND CONTINUITY OF STATES iig 

as also certain rights, such as the protection, wherever possible of 
the lives and property of neutrals, and freedom from search and 
capture by insurgent vessels.^* This involves a certain measure 
of responsibility for both the insurgents and the parent State. 

On the other hand, certain rights and privileges are recog- 
nized as belonging to the insurgents, as e.g, freedom from 
treatment as pirates, the right to prevent " access of supplies 
to their domestic enemy" ; ^* and it is maintained that ^' a status 
of insurgency may entitle the insurgents to freedom of action 
in lines of hostile conflict which would not otherwise be ac- 
corded, as was seen in Brazil in 1 893-1 894, and in Chile in 
1891. It is a status of potential belligerency which a State, 
for the purpose of domestic order, is obliged to recognize. The 
admission of insurgency does not place the foreign State under 
new international obligations as would the recognition of bellig- 
erency, though it may make the execution of its domestic laws 
more burdensome."" 

Unless recognized as belligerents, insurgents are not supposed 
to exerdse the rights of visit and search, capture of contraband, 
or to institute blockades. 

115. (n) Recognition of Belligerency. — A SkUus of BeUigerency 
may be recognized when the insurrection has assumed the propor- 
tions of a public civil war in a legal sense, i,e, a war waged by 
insurgents politically organized under a responsible government 



The rights and duties implied in a recognition of insurgency have never been 
fully determined or officially declared. 

^* See Secretary Hay to Mr. Bridgman, Minister to Bolivia, March 14, 1899, 
For. Rel. (1899), 105. Cited by i Moore, Digest, p. 243. 

" Sec'y Hay to the Sec'y of the Navy, Nov. 15, 1902. Cited by Wilson in article 
entitled " Insurgency and Int. Maritime Law, " in i i4 . J., p. 56. But Mr. Hay adds : 
"The existence of the power is restricted to the precise end to be accomplished. 
No right of confiscation or destruction of foreign property in such circumstances 
could well be recognized, and any act of injury so conunitted against foreigners 
would necessarily be at the risk of the insurgents. ' ' In another connection, he justly 
observes : ''To deny to an insurgent the right to prevent the enemy from receiving 
material aid cannot well be justified without denying the right of revolution." 

^ Wilson, in the article cited above. Professor Wilson is entitled to the credit 
of having first called the attention of students of International Law to this impor- 
tant subject and of formulating the law of insurgency ; but it has nevertheless been 
ignored, even by recent publicists. 

For the events in Brazil and Chile referred to in the text, see i and 2 Moore, 
Digest, §§ 70, 333-334, 1172. 



I20 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

exerdsing sovereign powers over a definite territory and having the 
will and capacity to fulfill its neutral obligations. It goes without 
saying that it must be able to protect the lives and property of 
neutrals so far as these are consistent with the ends and methods 
of dvilized warfare, the rules of which it is bound to observe. 

ii6. Effects of Recognition of Belligerency. — The efifect of a 
recognition of belligerency, which, like the recognition of indepen- 
dence, may be either tadt or express," is to admit the insurgents 
to all the rights and privileges, and to impose upon them all the 
duties of a State so far as the conduct of the war is concerned. It 
confers an international status, though merely for purposes of 
warfare ; but diplomatic relations between neutrals and insurgents 
should be unoffidal or informal in character,^^ and should be 
strictly confined to matters affecting the private and business 
interests of the nationals of both parties. Consuls may be sent 
or may continue to perform thdr duties among the insurgents 
when belligerency has been recognized, but no exequatur should be 
granted to a consul sent by an insurgent belligerent community."' 
It goes without saying that there must be no treaties or exchange 
of diplomatic agents. 

Spedal attention should be called to the fact that recognition 
of belligerency by third Powers is by no means necessarily or 
solely to the advantage of the insurgents. To be sure, it may give 
them moral comfort and support, enable them to float their bonds, 
etc. ; and it permits them to exerdse the rights of visit and search, 
capture contraband, and institute blockades. But the insur- 
gents may not be in as good a position to take advantage of these 
opportimities as the parent State, which also acquires these same 
rights and privileges.*® It should also be remarked that recogni- 

'* It is now usually express, i.e. it occurs through a formal Declaration or Proc- 
lamation of Neutrality, such as was issued by Great Britain soon after the out- 
break of our Civil War. But authorities are in error when they assert or imply 
that this has always been the case. The recognition of the belligerency of the South 
American States was tacitly recognized by the admission of their vessels to the ports 
of the United States on equal terms with those of Spain. See i Moore, Digest, 
§ 6i. Of course there is no doubt as to which method is preferable. Recognition 
by the parent States is always tacit or implied. 

" On this subject, see especially "Acts Falling Short of Recognition," in 
I Moore, § 72. 

*• See supra, note on p. 116. 

»• This was notably the case with Spain and Cuba. See Hershey, " The Recog- 



ORIGIN, RECOGNITION, AND CONTINUITY OF STATES 121 

tion by the parent State does not carry with it the same conse- 
quences or indicate the same attitude as recognition by third 
Powers. The parent State binds itself to treat those recognized 
as enemies instead of as rebels and pirates, at least until the war 
is over, and it declines full responsibility for acts of the insur- 
gents. But it does not recognize their neutrality or international 
status. 

117. History of Status of Belligerency. — The status of 
belligerency is a very modem addition to International Law. 
It was invented during the first quarter of the nineteenth century 
by the United States and Great Britain, and applied by them to 
the revolts in Spanish America and Greece ; but it is only with- 
in a comparatively recent period that the doctrine has been clearly 
defined, more particularly in connection with the American Civil 
War and the Cuban Insurrections of 1868-1878 and 1895-1898. 

118. The Tests of Belligerency. — It is now pretty generally 
agreed that a justifiable recognition of belligerency rests upon a 
double basis of law and policy. " The question of belligerency 
is one of fact not to be decided by sympathies for or prejudices 
against either party. The relations between the parent State 
and the insurgents must amount, in fact, to war in the sense of 
International Law."* 

" Among the tests are the existence of a de facto political organi- 
zation of the insurgents, sufficient in character, population, and 
resources to constitute it, if left to itself, a State among nations 
capable of discharging the duties of a State ; the actual employ- 
ment of military forces on each side, acting in accordance with 
the rules and customs of war . . . ; and, at sea, employment by 
the insurgents of commissioned cruisers, and the exercise by the 
parent government of the rights of blockade of insurgent ports 
against neutral commerce, and of stopping and searching neutral 
vessels at sea. If all these elements exist, the condition of things 
is undoubtedly war ; and it may be war before they are all ripened 
into activity." ^ 

nition of Cuban Belligerency/' in Annals Am, Acad, of Pol, and Soc. Science for 
i8g6, 74 ff.; Moore, in 21 Porum (1896), p. 297 f.; Woolsey, Poreign Policy y 25 flf. 

" President Grant, in Special Message of June 13, 1807. See i Moore, p. 194. 

" See Dana's valuable note 15 to Wheaton, pp. 34-39. A portion of this note, 
which is perhaps the clearest exposition of the law of belligerency ever published, 
may be found in i Moore, Digest ^ § 59, and Snow, Cases y 24-27. Cf. the first part 



122 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

The true ground of recognition as a matter of policy is thus 
stated by another leading authority : " The right of a State to 
recognize the belligerent character of insurgent subjects of another 
State must, then, for the purposes of International Law, be based 
solely upon a possibility that its interests may be so affected . . . 
as to make a recognition a reasonable measure of self-protection.^ 
According to Dana, the only justification for recognition is that 
the neutral's " own rights and interests are so affected as to 
require a definition of its own relations to the parties.'' If not 
justified by such necessity, " it is a gratuitous demonstration of 
moral support to the rebellion, and of censure upon the parent 
government" ; and premature recognition may be regarded in the 
light of an unfriendly act,^ though it should not be looked upon as 
an intervention. 

119. Historical Examples of Recognition of Belligerency. — 
Among the historical instances of recognition of belligerency are 
those of the various States of Spanish America^* by the United 
States and Great Britain during the first half of the nineteenth 

of President Grant's message of 1870 cited above, which is couched in almost iden- 
tical language. (Dana's edition of Wheaton was published in 1866.) 

It should be noted that Dana does not assert that all of the tests must be applied 
in every case. To insist upon a navy as a sine qua non would be equivalent to a 
claim that war in a legal sense cannot be carried on solely on land. Where it can 
be applied in conjunction with the others, this test is almost conclusive, although 
it is not likely that a mere fleet will be recognized, as was shown in the cases of 
Brazil and Chile in 1893 and 1891. See Lawrence, Principles (3d ed.), § 164; 
and I and 2 Moore, Digest , §§ 70, 333-334* "72. 

On the proper tests for belligerency, see also the rules adopted by the Insti- 
tute of International Law, in 18 Annuaire (1900), 228; Feraud-Giraud, in 3 ^. Z>. 
7. P. (1896), 277 ff. ; Olivarti in 28 R. D. I. (1896), 101-103; Rougier, j>5 guerres 
civUes (1903), Pt. Ill, chs. 3 and 4; and Wiesse, Guerres civiles, § 4. 

Some of the publicists are satisfied with much less than are the authorities indi- 
cated above. See e.g. Bluntschli, Art. 512; Pomeroy, § 224 ff. ; 2 Rivier, 21^ 
f. ; and Vattel, Bk. Ill, §§ 293-294. See also Justice Grier, in The Prise Cases^ 
2 Black, 665. 

** Hall (5th ed.), p. 33. Hall (p. 34) distinguishes three classes of cases in this 
connection: (i) The case of insurgents isolated in the midst of loyal provinces 
In this case the question could hardly arise. (2) The case of a State contiguous 
with a revolted State. Here the presumption of propriety is rather against recogni- 
tion, but the contiguous State decides whether its "interests will be better secured 
by conceding or withholding recognition." (3) In the case of maritime warfare, 
the presumption is in favor of recognition. 

" See Dana^ in note cited above. 

** See Latan6, The Diplomatic Relations of the United States and Spanish-Amer" 
ica, 56; and Paxson, The Independence of South American Republics, 253-264. 



ORIGIN, RECOGNITION, AND CONTINUITY OF STATES 123 

century ; the recognition of the belligerency of Greece by Great 
Britain in 1825 ; that of Texas by the United States in 1836 ^ ; and 
that of the Southern Confederacy ^ by Great Britain, France, etc. 
in 1861. The United States was on the verge of recognizing the 
belligerency of Cuba ^ in 1869, and again, in 1896; but the 
Executive Department of our Government in each instance re- 
frained from doing so on the ground mainly that a responsible 
government had not been established. 

120. (m) The Recognition of Independence. — The Status of 
Independence should not be recognized until the contest between 
the parent State and belligerent insurgents is virtually decided, 
and the independence of the latter has been practically established 
as a matter of fact. As in the case of the recognition of bellig- 
erency, there is a double question of law and policy involved. 
The real questions to be asked and answered are: (i) Is there 
a bona fide contest still going on or has it practically ceased ? 
(2) If the fact of virtual independence has been fully established, 
is it to the interest of the third Power to recognize the revolted 
or seceding community as a member of the international com* 



* I Moore, § 62. 

" On the famous controversy regarding the so<alled premature recognition of 
the Southern Confederacy by Great BritaiUi see especially i Moore, § 66, and the 
authorities cited on p. 189. To these should be added Bernard, Neutrality of 
Great Britain^ etc., chs. 6 and 7 ; Bluntschli, in 2 R, D. I. (1870), 452 ff. ; and Harris, 
The Trent Ajfair. 

It is now generally admitted even by Americans that the recognition of the 
Southern Confederacy by Great Britain on May 13, 1861, was not premature, 
though perhaps a trifle hasty. It was fully justified, if not necessitated, by Presi- 
dent Lincoln's Proclamation of April 19, 1 861, instituting a blockade of Southern ports. 

'^ It is known that President Grant was only prevented from taking this step 
by the opposition of his Secretary of State, Hamilton Fish. That the country was 
prepared for such recognition may be seen by consulting the Congressional debates 
of the period. See Cong. Globes 2d sess. of 41st Cong. (1869-1870), Pts. 5 and 6. 

In the spring of 1896 the two Houses of our National Legislature passed a con- 
current resolution in favor of the recognition of the belligerency of Cuba. Later, 
the Senate voted a joint resolution of like import. For the voluminous debates 
on this subject, see Cong. Record ^ 54th Cong., ist and 2d sess. 

On the agitation for the Recognition of Cuban Belligerency^ see Benton, Int. 
Law and Diplomacy of the Spanish- American War, 36-41 ; Hershey, in 7 Annals 
Am. Acad. (1896), 450 ff. ; Moore, in 2 Forum (1896), 288-300; Ibid., 1 Digest^ 
§ 67; Olivart, in 5 and 7 R. D. I. P. (1898), 518 ff.,and 575 ff.; Woolscy, Foreign 
Policy f 2$ ff* 

For further references on Recognition of Belligerency, see Bibliography at end of 
this chapter. 



124 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

munity ? ^ It is not necessary to await recognition by the parent 
State* 

121. Effects of Premature Recognition of Independence. — 
The justice of a cause or sympathy with an oppressed people are 
wholly insufficient grounds of recognition either of belligerency or 
independence. Premature or unjustified recognition of indepen- 
dence is a gross affront to the parent State and practically amounts 
to an intervention in the internal affairs of another nation which 
may result in war. Such was the recognition of the indepen- 
dence of the United States by France in 1778, which was followed 
by a declaration of war on the part of Great Britain. Other ex- 
amples of intervention.in the guise of recognition were the recogni- 
tion of the independence of Greece and Belgium by the Powers 
in 1827-1830, Cuba * in 1898, and Panama " in 1903. 

122. Examples of Recognition of Independence. — Sound 
precedents bearing on the law of recognition of independence, or 
cases in which the legal rule was observed, may be found in the 
numerous recognitions of Spanish American States by the 
United States and Great Britain in the first half of the nineteenth 
century ; and in the recognition of Texas by the United States in 

** See X Moon, Digest, §§3off., pp. 87-110, for good statements of the law of the 
recognition of independence by American statesmen. See Letters of Hislaricus 
(III) by Sir W. Harcourt for citations from the speeches of British statesmen on 
this subject. 

There is perhaps no rule of International Law respecting which there is greater 
agreement than that governing the recognition of the independence of insurgent 
communities. 

^ Thus, the Spanish-American States were not recognized by Spain untfl many 
years after their recognition by the United States and Great Britain. Holland 
was not recognized by Spain until 1648, i.e. nearly seventy years after Holland's 
declaration of independence. 

^ The United States, not wishing to recognize the so<alled government of the 
Cuban insurgents, declared the people of Cuba free and independent. On the 
Recognition of Cuban Independence, see Benton, ch. 4; Cameron's Report No. 
1 160, in Senate Doc. of 5th Cong., 2d sess. (38827); Chadwick, Relations of the 
U.S. and Spain (1909), ch. 29; Hershey, in 11 Annals, etc. (1898), 353 ff.; i and 
6 Moore, §§ 40, 1 909-1910. 

*^ The independence of Panama was formally recognized by President Roosevelt 
on Nov. 13, 1903, i.e. within ten days after the so-called revolutionists had declared 
their independence. It was virtually recognized within three days after the birth 
of this Republic. It was really a case of political intervention, only to be justified, 
if at all justifiable, on grounds of national policy and the " collective interests 
of civilization." 

On the Recognition of Panama, see 3 Moore, § 344 for the main docxmients bear- 



ORIGIN, RECOGNITION, AND CONTINUITY OF STATES 125 

1837, one year after Mexico had ceased all attempts to recover her 
lost territory .^^ 

123. There is no Legal Right or Duty of Recognition. — 
Strictly speaking, there is no legal right or duty of recognition, 
although the new State which has fully established its indepen- 
dence undoubtedly has a strong moral claim to diplomatic inter- 
course and admission to membership in the family of nations. 
It should be added that recognition, whether of insurgency, 
belligerency, or independence, is usually regarded as an executive 
act, and falls within the prerogative of the Executive Department 
of the Government." 

124. The Continuity of States. — It is a cardinal principle of 
the Law of Nations that changes in the internal government or 
constitution of a State, as from a monarchy to a republic or a 
change of dynasty, do not aflFect its identity or continuity as an 
International Person.** But in case such a change is effected by 
revolution or violence, other States should be allowed a reason- 
able time within which to recognize the new government. The 
same principle applies here as in the case of the recognition of a 
new State. The new government should show evidence of 
stability and capacity to carry out its international obligations. 
In the meantime, however, necessary business may be transacted 
with the de facto or local government, but such business should 
be of a distinctly non-political character ; or, if political, it should 
not pass beyond the stage of negotiation.^ 

ing upon the case. See also Hershey, in 16 Green Bag (1904), 265-266; Scott 
(G. W.), in 75 Outlook (1903), 947-950; Woolsey, in 16 Green Bag (1904), 6-12 ; 
Rougier and Viallate, In 11 R. D.I, P, (1904), 481 ff. and 567-165 ; and * Chamber- 
lain, in 195 No. Am. Rev. (191 2), 145 ff. 

" On the Recognition of the Independence of the Spanish- American Republics 
and Texas ^ see i Moore, Digest^ §§ 28-37; Latan^, The Diplomatic Relations of 
the United States and Spanish America, ch. 2; Paxson, The Independence of the 
South American Republics; and Letters by Historicus (Sir W. Harcourt), I, 3-35* 

" For a citation and discussion of the American cases, see Penfield, in 32 Am. 
Law Rev. (1898), 390-408. For a fuller citation of cases, see Jones v. United 
States, 137 U.S. 202. See Scott, 38-44, for an abridged report of this leading case. 

^ Of course this principle does not apply in cases of a total or partial loss of inde- 
pendence, or in changes which involve the union of several States into one or the 
division of one State into several. For judicial assertions of this fundamental 
principle, which is now imiversally accepted, see Texas v. White, 7 Wall. 700 and 
Keith V. Clark, 97 U.S. 454. For an abridged report of these cases, see Scott, 25-36. 

*• For the practice of the United States, see i Moore, Digest, §§ 43-58, particu- 
larly pp. 120 and 139. 



126 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

Generally speaking, treaties remain obligatory except in the 
case of personal or purely dynastic treaties;* the financial 
obligations incurred by the previous government must be paid ; 
property rights, whether public or private, remain unaffected 
unless alienated or confiscated ; and the new government is re- 
sponsible for wrongs and injuries done to the government or citi- 
zens of another State.'^ 

The same principles apply where there has been a mere loss of 
territory. Thus the obligations of Prussia remained the same 
after she had been deprived of almost one third of her territory 
by the Peace of Tilsit in 1807.'* Such loss of territory mighty 
however, be conceivably so great as to make it practically impos- 
sible for a State to fulfill its legal obligations. " On the same 
principle, when a State is extinguished, and its territory incor- 
porated with another State, the continuity of the annexing State 
and the obligations of its treaties are unafiFected, and the treaties 
of the extinguished State fall to the ground." ^ Thus, upon the 
" incorporation of the kingdom of Hanover in the Prussian 
monarchy, in i860, the Hanoverian treaties of amity, commerce, 
navigation, extradition, and copyright ceased to exist. They 
were replaced by the Prussian treaties on the same subjects." ^ 

■• An example of such a treaty is the Family Compact of 176 1 between the king 
of France and other members of the House of Bourbon. A change in the form of 
government might also affect political treaties or alliances. 

" Under the convention of 183 1, France finally paid the United States a money 
indemnity in settlement of claims of American citizens growing out of illegal acts 
committed by Napoleon I. i Moore, pp. 249 and 252. For the full history of the 
French indemnities paid to citizens of the United States, see 5 Moore, Int. Arbi- 
trations j 4399-4459. For the history of the indemnity paid by the king of the Two 
Sicilies, see 4575 ff. and especiaUy 4576-4581 as to the principle of liability involved. 

•• The same principles would apply where a State had increased its territory-. 
** Even Sardinia, while enlarging its area to nearly four times its original size by the 
absorption of the rest of the Italian States, and after changing its name to that of 
the kingdom of Italy, did not consider its indentity to be destroyed, and held its 
existing treaties to be applicable as of course to the new provinces." Hall (5th ed.), 
p. 2^ n. 

" I Westlake, pp. 59-60. As we shall see in the next chapter (p. 132), the latter 
part of this statement is too absolute. Not all treaties of the extinguished State 
are abrogated. 

** Rivier, 73. Cited by i Westlake, 60. Other instances mentioned by West- 
lake are the extinction of the commercial treaties of England and France with 
Texas after the incorporation of the State into our Federal Union in 1845, ^^^ the 
abrogation of the Tariff Conventions of England and the United States with Mada* 
gascar upon the annexation of this island by France in 1896. For a discussion of 
the latter case, see Lawrence, Principles (3d ed.). Appendix I- 647-651. 



ORIGIN, RECOGNITION, AND CONTINUITY OF STATES 127 

BIBU06KAPHT 

Contiiiiiity or Identity of States. — Bluntschli, Arts. 39-45 ; i Calvo, 
§§ 99, 104,182-183; Creasy, 99-110; Despagnet, Nos. 87-88; i Fiore, 
Nos. 321-331 ; Field, Art. 19; Hall (6th ed.), 11-22; i Halleck (3d ed.), 
90; Holtzendor£F, in 2 Handbuch, 21-23; Lawrence, Principles (4th ed.), 
§ 48 ; I F. de Martens, § 65 ; * i Moore, §§ 78-79 ; * i Phillimore Pt. II, 
ch. 7 ; * I Pi6deli^vre, Nos. 135-142 ; Pomeroy, §§ 68-75 ; i Oppenheim, 
§576-77; I P.-Fod6r6, Nos. 149-155; i Twiss, §§ 18, 21; *i Rivier, 
62-63 ; Ullmann (2nd ed.), § 35 ; * i Westlake, 58-59 ; Wheaton, §§ 28-32 ; 
Woolsey, §§ 38-40. 

Recognition of States as International Persons. — Bluntschli, Arts. 
28-38; ♦Bonfils (Fauchille), Nos. 195-213; i Calvo, §§ 87-^8 ; Chre- 
tien, Nos. 149-159; Creasy, 677-681; Despagnet, Nos. 79-85; i Fiore, 
Nos. 309-320; * Hall (6th ed.), 20, 82-91; i Halleck (Baker's 3d ed.) 
79-86; Heffter (Geffcken), § 23; Holtzendorff, in 2 Handbuch, 18-33; 
Lawrence, Principles y §§ 56-60 ; Lawrence, i Comtnentairey 195 fif. ; Liszt, 
§5, pp. 42-44 ; I and 2 Lorimer (see index) ; i F. de Martens, §§ 63-64 ; 

1 M^rignhac, 320-330; * i Moore, ch. 3, §§ 27-42 ; * Le Normand, La recon- 
naissance intermUionale (1899); * i Nys, 66-115; i Oppenheim, §§ 71-75; 

2 Phillimore, Pt. V, ch. 4; i Pi^deli^vre, Nos. 1 19-124; * Pomeroy, ch. 7, 
§§ 215-249 ; I P.-Fod6r6, Nos. 136-145 ; * i Rivier, 54-61 ; Snow, § 8 ; Taylor, 
§§ 1 53"! 59; Ullmann (2nd ed.), § 30; Walker, Manual ^ § i ; /WJ., Science, 
116-118; I Westlake, 57-58; Wheaton (Atlays ed.), §§ 26-27; * Ibid, 
(Dana's ed.), Dana's note 16 ; Wilson and Tucker, § 21. For further refer- 
ences, see Griffen, List of References on Recognition published by Library 
of Congress in 1904. 

Recognition and Effects of Belligerency. — * Bernard, NetUrality of 
Great Britain during the Civil War (1870), passim^ especially 114-117, 
122-150, 1 51-166 ; Bluntschli, in 2 R, D. I. P, (1870), 452 ff., and Droit int.. 
Art. 512; Bonfils (Fauchille), Nos. 202-203, 1045-1046; i Calvo, §§ 84- 
86; Hall (6th ed.), 29-39; i Halleck (3d ed.), 79, 84; * (Harcourt) Letters 
of HistoricuSy 1-37; * Lawrence, (3d ed.), §§ 53, 162-164; Ibid. (4th ed.), 
§§ 41, 141 ; Kleen, De la neutrality ^ § 34; F6raud-Giraud, in 3 R. D, /. P. 
(1896), 277 ff. ; * I Moore, Digest y §§ 59-71 ; Le Normand, La reconnaissance 
inlernationale (1899) ; Olivart, Del reconocimiento de belligerancia (1895) ; 
♦ Ibid.y in 28 R.D. I. (1896), 100-103, 3 R- D- 1- P^ (1896), 503 f., 5 R,D. I, P. 
(1898), 500, 7 R, D, I. P. (1900), 575 ff. ; Pomeroy, §§ 224-235 ; 6 P.-Fod6r6, 
No. 2658 ; 2 Rivier, 213-214 ; * Rougier, Les guerres civiles (1903), especially 
§§ 45-50* 89-102 ; Scott, CaseSy 53-61 ; Snow, § 10 ; Taylor, §§ 145-147 ; 
Walker, Manual, § i ; 7Wrf., Science, 115-116; i Westlake, 50-57 ; Wiesse, 
Le droit int, appliqui aux guerres civile (1898), §§ 3-12 ; i Wharton, Digest, 
§ 69 ; Wheaton, Dana's note 15 ; Wilson and Tucker, § 28 ; Woolsey, §§ 41, 
180. For a fuller bibliography on belligerency, see Rougier, op. cit., xi-xvi. 

Recognition and Effects of Insurgency. — Benton, Int. Law and Diplo- 
macy of the Spanish- American Wary 34-38; Lawrence, Principles (4th ed.), 
§ 142 ; De Olivart, in 5 i?. D. I. P. (1899) ; * i Moore, Digest, § 74; Wilson 



128 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

and Tucker, § 27 ; * Wilson, Lectures an Insurgency (1900), delivered at the 
Naval War College, Newport, R.I. ; Ibid., in 1 A.J, (1907), 46-60; 
* 3 Wharton, Digest, i 381, p. 469; Wilson, Int. Law, § 18; Ibid., in 40 
Cyc, 313 ff. 

The subject is one which is almost wholly ignored even by recent 
authorities. 



CHAPTER Vni 

THE EXTINCTION AND SUCCBSSION OF STATES 

I. The Extinction op States 

125. Total Extinction. — A State ceases to exist when it has 
lost the essential marks or distinguishing characteristics of a 
State.^ It may become extinct through voluntary action or as a 
result of conquest. Theoretically, this might result from natural 
causes, such as depopulation, extermination, total emigration, or a 
permanent condition of anarchy. But practically. States are ex- 
tinguished through voluntary incorporation, forcible annexation, 
division into several States, or through a union with other States.* 

Like the recognition of a new State or government, the recogni- 
tion of a conquest, merger, division, or cession is the recognition 
of an accomplished fact, and should not be refused after resistance 
has virtually ceased, or when the old government has practically 
abandoned its functions. But a reasonable time should be per- 
mitted to elapse in order to enable the recognizing State to judge 
of the permanence and stability of the new condition of affairs, or 
to determine the capacity of the new State or States to carry out 
their international obligations. Such recognition is generally tadt. 

States fully extinguished lose all international personality, 
and acquire the rights and obligations of the annexing or incor- 

1 See supraj \ 88. 

' Examples of voluntary incorporation are the Union of England with Scot- 
land and Ireland, and the admission of Texas into the Federal Union of the United 
States. 

History abounds in examples of forcible annexations or cessions and conquests. 
Recent instances are the annexation of the South African (Transvaal) Republic 
and the Orange River Free State by Great Britain; and of Porto Rico and the 
Philippine Islands by the United States. 

Instances of division or separation are Belgium and Holland in 1831, and Nor- 
way and Sweden in 1905. 

Examples of union are the Federal Unions of the United States, Gennany, and 
Switzerland. 

K 129 



I30 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

porating State. The observance of any agreements or promises 
made by the latter to such annexed or incorporated State is a 
matter of conscience, or of moral rather than of legal obligation. 
On the other hand, no purely legal sanction of its extinction can 
be given by the extinguished State, whether by treaty, by the con- 
sent of a representative assembly, or by popular vote (plebiscite). 

1 26. Partial Extinction. — There is a partial loss of inter- 
national personality when a State loses a part of its external 
sovereignty or independence, either by placing itself under the 
Protectorate of a stronger Power, by joining a Confederacy, or 
by permanent neutralization. Such partial loss of independence 
may materially affect its international obligations. 

2. The Succession op States 

127. ITniversal Succession. — When one State takes the place 
of another and undertakes a permanent exercise of its sovereign 
territorial rights or powers, there is said to be a succession of 
States.' This succession may be called universal in case of total 
absorption, whether through voluntary agreement, forcible 
annexation or subjugation, the division of a State into several 
International Persons, or the imion of several States into a single 
International Person. Universal succession may also be said to 
exist where a State is broken up and divided among several 
previously existing States, as in the case of the division of Poland 
between Russia, Prussia, and Austria. 

1 28. Partial Succession. — Partial succession occurs in the 
following cases : — 

(i) When a State acquires a portion of the territory of another 
through cession or conquest. 

(2) When a new State is formed in consequence of a successful 
revolt or declaration of indej)endence. 

(3) When a fully sovereign State loses a portion of its external 
sovereignty or independence through incorporation into a Federal 
Union, or places itself under the Protectorate of a stronger Power. 

(4) When the latter process is reversed, and the State under 
Suzerainty or a Protectorate, or the member of a Federal Union, 
becomes a fully sovereign state. 

' On the meaDing and propriety of. this phrase, see note at the end of this chapter. 



THE EXTINCTION AND SUCCESSION OF STAl'ES 131 

/. Universal Succession 

129. Effects of Total Absorption. — In case of total extinc- 
tion and absorption or incorporation, the authorities are generally 
agreed that the annexing or absorbing State succeeds in the main 
to the rights and obligations of the extinguished State. " The 
conqueror who reduces a nation to his subjection receives it sub- 
ject to all its engagements and duties toward others, the fulfill- 
ment of which then becomes his own duty." * 

There is no reasonable doubt that the successor assiunes re- 
sponsibility for the financial obligations, more particularly the 
public debt, of the extinguished State. The former falls heir to 
the latter's assets, credits, revenues, and resources subject to the 
charges or burdens resting upon them.^ ^^Res transit cum suo 
onere^ Thus, the United States* assumed the public obliga- 

* Mr. Adams, Sec. of State, to Mr. Everett on Aug. 10, 18 18. i Moore, Digest, 

P- 334. 

*This principle extends to the case of an extinguished government. "It was 

applied by the English courts to the cotton in England belonging to the Govern- 
ment of the Confederate States, which was held to pass by their overthrow to the 
United States, subject to such right of account against the latter as the holders of 
it would have had against the former." i Westlake, p. 75. See the United States 
v. Prioleau (1866), 2 H. and M. 563, and Scott, Cases, 85 ; United States of Amer- 
ica V. McRae (1869), L. R. 8 Eq. 69; and the King of the Two Sicilies v. Wilcox 
(1851), I Sim. N. S. 301, 327-336. 

An exception to the application of this principle exists where a loan has been 
contracted for the purpose of the war which results in extinction or absorption. 
I Westlake, 78. 

* The famous case of the Texan bonds is only an apparent exception to this rule. 
When Texas was admitted tq the American Union in 1845, ^^^ power to lay and 
collect customs duties passed to the United States. It was agreed that the vacant 
and unappropriated lands within its limits were to be retained by the State and 
"applied to the payment of the debts and liabilities of the Republic of Texas; 
and the residue of the lands, after discharging the debts and liabilities, were to 
be disposed of as the State might direct, but in no event were said debts and lia- 
bilities to become a charge upon the Government of the United States." 5 U. S. 
Statutes at Large, 798. Cited by i M9ore, p. 343. Subsequently, in 1850, the 
United States took over a portion of these lands, and in return for this and other 
considerations, the United States agreed to pay to Texas $10,000,000, but stipu- 
lated that five millions thereof should remain unpaid until the creditors holding 
Texan bonds for which duties on imports had been specially pledged, should file 
releases of all claims against the United States. 

In 1854, before a final settlement was made, a British holder of a Texan bond 
brought a claim against the United States for the payment thereof before a mixed 
comnyssion which had been instituted for the adjustment of claims between the 
United States and Great Britain. The British and the United States commissioners 



132 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

tions of the former colonies in 1789, the enlarged Sardinia or the 
new Italy took over the public debts of the lately annexed Italian 
States in 1861, as did Prussia those of the incorporated German 
States in 1866. 

In case there are several successors, the debt should be rateably 
divided, preferably in proportion to the revenues and taxable 
resources ' of that portion of the divided territory which each 
receives. 

In principle, the absorbing or incorporating State also succeeds 
to the contractual obligations of the extinguished State, at least 
as far as the rights of third parties are involved ; and, vice versa y 
the contractual rights and obligations of the annexing State 
extend to the inhabitants and territory of the people absorbed. 

There are, however, important exceptions to this rule. It is 
clear that political (including personal and dynastic) treaties and 
alliances of the extinguished State fall to the ground. It is 
equally clear that transitory or dispositive treaties remain in 
force. Of such a character are stipulations respecting boundary 
lines, servitudes, or easements resting on the land relating to the 
use and repair of roads (including railways) or the navigation 
of rivers, etc. In these cases the rights of third parties, which it 
would be illegal to ignore or destroy, are involved. 

gave diametrically opposed opinions. The umpire, Mr. Joshua Bates, an American 
citizen, decided that the commission could not entertain the claim, apparently for 
lack of jurisdiction. 

Whatever the merit of this decision, there can be no reasonable doubt that the 
United States was bound in equity to pay these bonds. As Dana (note 18 to Whea- 
ton) has well said : " It certainly would not be satisfactory to say that the United 
States discharges its obligation to the creditors of Texas, to whom her customs were 
pledged, by paying only the amount of the customs received." 

In 1855 Congress passed an act providing that, in lieu of the $5,000,000 payable 
to Texas in 5% stock under the act of 1850, the Secretary of the Treasury should 
pay to those creditors of Texas who held bonds for which the revenues of the Repub- 
lic were pledged, the sum of $7,500,000, to be apportioned among the holders pro 
rata. S^ i Moore, p. 347. 

On the Texan Bond Controversy ^ see especially : i Calvo, § loi ; * Dana's Wheaton, 
note 18; Lawrence, i Commentairey 211 ff. ; Magoon, Law of Civil Government 
under Military Occupation^ 190-191 ; * i Moore, Digest, § 97, pp. 343-347 ; * 4 Moore, 
Int. Arbitrations y 3591-3594; Scott, Cases y 94-96 n. ; Snow, Cases y 18-20; i West- 
lake, 77-78; Ullmann (2d ed.), 132 n. 

^ The extent of territory and number of the population have also been suggested. 
These hcve in a few cases furnished the basis of the division, but they furnish very 
crude and unsatisfactory criteria. 



THE EXTINCTION AND SUCCESSION OF STATES 133 

There is a serious diflFerence of opinion in respect to treaties of 
commerce, navigation, extradition, etc. According to some 
authorities,^ such treaties are extinguished like those of a politi- 
cal alliance or friendship. According to another, but more 
infrequent, view, " treaties of conunerce and other international 
conventions which bind the annexed State"* remain in force. 
There is a third opinion which considers " a general answer to 
these questions based on principle, to be impossible and leaves 
them to the nature and scope of the treaties and concrete circum- 
stances for decision." ^® The better opinion (and the one most 
consonant with international practice) would seem to be that such 
treaties may be annulled at the option of the absorbing State. 
True it is that the rights and interests of third parties are 
affected; but the interests involved are for the most part 
economic or quasi-political in their nature, and cannot as a rule 
resist the pressure of changed social and political conditions. 

As in the case of partial succession,^^ the universal successor 
acquires complete rights of sovereignty over the territory which 
has been absorbed ; and can, therefore, make any change in the 
laws or political institutions of the extinguished State which it 
deems necessary or desirable. But dvil and criminal law as 
opposed to constitutional and purely administrative law, and 
the private rights of the inhabitants of the extinguished State, 
remain unaltered unless changed by express enactment. Con- 
tracts, franchises, and concessions to private companies and indi- 
viduals should also, as a rule, be maintained. The universal 
successor also succeeds to the public and private domain of the 
extinguished State. 

■£.;. Despagnet, No. 91; i Piidelidvre, No. 148; Rivier, pp. 72 S,; 1 West- 
lake, p. 67 n. 

' I F. de Martens, p. 369. 

^^ Ullmaiin (2d ed.)i p. 132. Cited by i Westlake, p. 67 n. Ullmann dtes Blunt- 
schli and i Calvo, § 100, in favor of this opinion — a view which he himself seems to 
share in spite of his criticism of it as being " much too deastic." He claims that the 
annexing State succeeds to the legal order (Rechtsordnung) of the incorporated 
State, but admits that, in deciding on the question whether such treaties shall be 
maintained, it (the absorbing State) takes its own interests into account. 

" See iw/ra, p. 137. 



134 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

//. Partial Succession 

130. Effects of Partial Succession. — The general rules and 
principles governing partial succession are practically the same as 
in the case of universal succession or total extinction and absorp- 
tion. But these rules may be greatly modified in international 
practice by considerations of public policy based on the interests 
of the ceding as well as on those of the annexing States. There 
is even a greater modification of these principles in the case of a 
colony or province which has achieved its independence. 

The main difference between the two categories of universal 
and partial succession is that in case of partial succession, whether 
by cession or conquest, there is a continuity of State life or per- 
sonality on the part of the State which has lost a portion of its 
territory. This materially affects international rights and 
obligations. 

In such cases it may be necessary to distinguish between the 
general rights and obligations of the ceding or dismembered 
State and the special or local rights and obligations of the inhabit- 
ants of the ceded territory. This distinction also applies to the 
case of a colony or province which has achieved its independence. 
There may be certain charges or burdens in the nature of servi- 
tudes resting upon the land, or the assets, revenues, or resources 
of the new State or ceded province may have been mortgaged or 
hypothecated as security for the payment of a portion of the pub- 
lic debt of the ceding or dismembered State. 

It is generally agreed that the purely local or personal rights 
and obligations of the ceded or conquered territory, as also those 
of the new State which has achieved its independence, remain 
with the new State or ceded territory. This is particularly true 
of the public domain, public property such as government rail- 
ways, and of purely local and personal debts or of any por- 
tion of the public debt which may have been contracted in the 
interest of the new State or ceded province, more particularly 
for internal improvements. 

Many of the authorities^* maintain that the partial successor 

" It is often claimed that this is also the case with debts which are secured by 
the assets, revenues, or resources of the ceded province or of an insurgent or bellig- 
erent community which has won its independence. But the rule would certainly 



THE EXTINCTION AND SUCCESSION OF STATES 135 

must also take over a proportional part of the general public 
debt of the ceding or dismembered State ; but, however equitable 
and just such an arrangement may be, it cannot be maintained 
that this is a positive rule of the Law of Nations. There have, 

not apply to a loan thus secured which had been contracted for general purposes, or 
for the ^)ecial purpose of waging the war or crushing the rebellion resulting in 
cession or independence. 

The United States in 1898 refused to assume in behalf of Cuba any portion of the 
so-called Cuban debt, for the payment of which the Cuban revenues were pledged, 
on the ground that it consisted of a ''mass of Spanish obligations and charges," 
and was "in no sense created by Cuba as a province or department of Spain or by 
the people of the island." This debt had been mainly contracted "for the pur- 
pose of supporting a Spanish army in Cuba," and the creditors " took the chances of 
the investment" with a full knowledge of the risks involved. "From no point of 
view can the debts above described be considered as local debts of Cuba or as debts 
incurred for the benefit of Cuba." i Moore, Digest, § 97, pp. 351-385. The cita- 
tions given above may be found on pp. 352, 357, 358, 367, and 368. 

There can be no question that the United States acted wisely in refusing to assume 
for her prot^gd the major portion of this debt, but Cuba would seem to have been 
liable in equity for such a portion of the loan as had been spent on internal improve- 
ments, such as railways, harbors, etc. See an interesting article contributed by 
Von Bar to the German periodical Die Naiiati for April 22, 1899. Cited by i West- 
lake, 79 n. 

On the Cuban and Philippine Debts, see Magoon, Law of Civil Government under 
Military Occupation, p. 187, for a citation from an article by Hon. Whitelaw Reid 
contributed to the Anglo-Saxon Review for June, 1899. Mr. Reid says: "Warned 
by the results of their inquiry as to the origin of the ' Cuban Debt,' " and having 
" learned that over one fourth of the Philippine Debt had actually been transferred to 
Cuba to carry on the war against the Cuban insurgents," the American com- 
missioners at Paris abandoned all idea of assuming the so-called "Philippine Debt." 
But the United States paid to Spain the sum of $20,000,000 for the cession of the 
Philippine Islands — an amount which was at least equal to the face value of that 
debt. 

The views of Le Fur on this subject (see 6 R. D. I. P. (1899), 615 ff.) are so obvi- 
ously prejudiced that they are unworthy of serious refutation. 

The Spanish Commissioners made much of the fact that the Spanish-American 
colonies had assumed their local debts (see i Moore, pp. 342-343, 355) ; but the cir- 
cumstances were very different, and " historically we know that the assumption of 
said obligations was a price paid by said colonies for independence and recognition 
of sovereignty." Magoon, op. cit., p. 188. 

There are numerous other historical examples of the assumption of purely local 
debts (see i Moore, pp. 339-351, 361), and it undoubtedly amounts to an obliga- 
tion in International Law. 

The following authorities hold that the partial successor should assume a pro- 
portional part of the public debt : Bonfils (Fauchille), Nos. 224 ff. ; Despagnet, No. 
97; I Fiore, No. 360; Huber, Nos. 125-135 and 205; i Pi^deliftvre, Nos. 154 ff.; 
I Rivier, 214; Taylor, § 165; Ullmann, § 33. To the contrary may be cited: 
Bluntschli, Arts. 47-48; Hall (5th ed.), 93 n., 98-99 n.; i Halleck 91; i Oppen- 
heim, § 84; i Pradier-Foddr6, No. 157. 

The Ayes thus seem to have it, but it should be noted that a number of them 



136 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

indeed, been a considerable number of historical instances of such 
division/* but the international practice is by no means uniform. 
If the debt is divided, it should be in proportion to the taxable 
assets or resources of the new State or ceded province as com- 
pared with those of the remaining portion of the dismembered 
State. 

Contrary to the general principle governing in the case of 
universal succession," all treaties, excepting transitory and dis- 
positive conventions, affecting the incorporated or ceded province 
fall to the ground in cases of partial succession. This also holds 
when an insurgent or seceding colony, province, or State has 
achieved its independence.** 

qualify their statement of the law by the use of such phrases as should, it is just 
and rationcU, theoretically , etc. This indicates a subjective rather than a positive 
or objective attitude toward the subject. They evidently endeavor to state the 
law as they think it should be, rather than as it is — a frequent fault with Con- 
tinental publicists. 

*' The main instances of a division of the general public debt prescribed in modem 
treaties are as follows: — 

(i) The assumption by Sweden of a part of the Danish debt upon the cession 
of Norway by Denmark in 1814. (2) The agreement by France to take over a small 
portion of the national debt of Sardinia upon the latter's cession of Savoy and Nice 
in i£6o. (3) The apportionment of the Danish debt between Denmark and the 
ceded duchies upon Uie annexation of Schleswig, Holsteln, and Lauenburg by .Aus- 
tria and Prussia in 1864 and 1866. (4) The assumption by Italy of a part of the 
Papal debt in 1864. (5) The assumption by Sardinia of three fifths of the Monte- 
Lombardo-Veneto debt, and of a part of the Austrian national loan of 1854, by the 
treaty of Zttrich in 1859. (6) The division by the Powers of the public debt of the 
Netherlands between Belgium and Holland in 1839. (7) The obligations imposed 
by the Powers upon Bulgaria, Servia, Montenegro, and Greece to discharge portions 
of the debt of the Ottoman Empire in accordance with the treaty of Berlin of 1878. 
But no part of the Ottoman debt was. assumed by Russia on account of her acquisi- 
tions in Asia. It may be noted that the two latter instances are examples of a 
division secured through European intervention rather than by conquest or a treaty 
of cession. For a few more relatively unimportant examples, see Huber, Die 
Staatensuccessiortt No. 127. 

Among the important recent historical instances where there was no assump- 
tion of any portion of the general debt are those of the cession of Alsace-Lorraine 
by France to Germany in 1871, and of Cuba and the Philippine Islands by Spain in 
1898. The United States did not take over any portion of the British debt upon the 
acknowledgment of her independence by Great Britain in 1783, nor have any of 
her various acquisitions of territory been charged with such obligations excepting 
Texas. The Spanish-American colonies appear to have assumed only their local 
debts. 

" See supra, p. 132. 

" Thus the United States did not share in either the rights or obligations of 
British treaties after she had achieved her independence. A long and bitter contro- 



THE EXTINCTION AND SUCCESSION OF STATES 137 

" On the cession *• of territory by one nation to another, those 
internal laws and regulations of the former designated as munici- 
pal continue in force and operation until the new sovereign im- 
poses different laws and regulations." But those " laws which 
are political in their nature, and pertain to the prerogatives of 
the former government, immediately cease upon the transfer of 
sovereignty."*^ The Constitution and laws of the annexing or 
conquering State do not necessarily extend ex propHo vigore to 
the annexed or ceded territory,*^ which is nevertheless completely 
subject to the will of its new sovereign.' 

versy arose in connection with the fishing rights granted by Great Britain in 1783. 
The United States claimed that the right to fish on the coast of Newfoundland and 
on the other coasts of the British dominion in North America was merely a recog* 
nition of preexisting and imprescriptible rights which were not abrogated by the 
War of 181 2. On the other hand, the British justly held that these rights were 
created by treaty and were extinguished by the war. By the treaty of 1818 the 
citizens of the United States were merely granted the liheriy to fish, etc. This 
constituted a virtual abandonment of the untenable contention that these rights 
existed independent of treaty stipulation. 

On the Northeastern Piskeries, see especially : J. Q. Adams, The Fisheries and 
the Mississippi (1828) ; Elliot, The United States and the Northeastern Fisheries 
(1887); Isham, The Fishery Question (1887); Hall (5th ed.), 94-95; Lawrence, 
Principles (3d ed.), § in; *i Moore's Digest, §§ 163 ff.; Dana's Wheaton, 341- 
350 and note 142 ; Wharton's Digest , §§ 301 ff. ; and the U. S. v. Great Britain (case 
of Atlantic Coast Fisheries), in 4 il. /. (1910), 948 ff. 

'* The same rule applies, of course, to cases of conquest. 

" Griggs, Att'y-Gen., in x Moore, Digest, § 93, p. 310. See also i Moore, § 93, 
p. 310, especially the opinions of Chief Justice Marshall, Lords Mansfield and 
Ellenborough on pp. 332-333. 

^* See especially the series of decisions known as the "Insular Cases" dedded by 
our Supreme Court in 1901. In the leading case of De Lima v. BidweU (182 U. S. i), 
it was held that Porto Rico was not a foreign country within the meaning of the 
tariff laws after its cession, but a territory of the United States. Consequently, 
the Dingley Tariff Act of 1897, which was exclusively applicable to foreign coun- 
tries, did not apply to Porto Rico. See also Fourteen Diamond Rings v. United 
States (183 U. S. 176), which applied the same doctrine to the Philippine Islands. 
In Downes v. BidweU (182 U. S. 244), it was held that Porto Rico "is a territory 
appurtenant and belonging to the United States within the revenue clauses of the 
Constitution; that the Foraker Act (of 1900) is constitutional, so far as it imposes 
duties upon imports from such islands." In Dooley v. United States (182 U. S. 
222), it was held that duties upon unports from the United States to Porto Rico 
prior to the ratification of the treaty of peace were lawfully collected under the 
war power. It is a remarkable fact that the decision in each case represented a 
bare (but not alwajrs the same) majority of one, the vote of the judges standing 
five to four. 

On the Insular Cases, see especially : i Moore, § 94 ; i Willoughby, The Const. 
Law of the U. 5. (1910), §§ 1 70-1 71 and ch. 30; and Scott, Cases, 667-674, including 
note on p. 674. For further references, see i Moore, p. 331. 



138 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

Private rights are unaffected by a change of sovereignty. " It 
is very unusual, even in cases of conquest, for the conqueror to do 
more than displace the sovereign and assume dominion over the 
country. The modem usage of nations, which has become law, 
would be- violated; that sense of justice and of right which is 
acknowledged and felt by the whole civilized world would be 
outraged if private property should be generally confiscated. The 
people change their allegiance ; their relation to their ancient 
sovereign is dissolved ; but their relations to each other, and their 
rights of property remain undisturbed. If this be the modem 
rule even in cases of conquest, who can doubt its application to 
the case of an amicable cession of territory ? " ^^ 

In Cuba and the Philippines the rights of property entitled to 
protection under the phrase "property of all kinds " (see Arts. I 
and VII of the treaty of peace with Spain) were believed to in- 
clude trade-marks and the property rights of municipalities,^ 
but they were held not to include rights to public office, whether 
purchased or inherited.^ 

The annexing State, as also the colony or province which has 
achieved its independence, succeeds to the public domain of that 
portion of the ceding or dismembered State which is located in 
the ceded territory or the new State ; but it appears to be some- 

For other cases showing the efifect of a change of sovereignty on laws, see Beale, 
Cases on the Conflict of Laws (1900), 65-84. See also Scott, X04-116. 

"C. J. Marshaill, in the leading case of United States y.Perckeman (1833), 7 Peters, 
51, 86 ; and (m abridged form) Scott, 95. Our great Chief Justice also stated that 
even had the treaty by which Florida was ceded to the United States contained 
no stipulation safeguarding the property of individuals, their property rights 
would have been unaffected by the change. In United States v. Soulard (4 Pet. 
511), he had remarked apropos of the cession of Louisiana that "the United States, 
as a just nation, regards this stipulation (viz. that the inhabitants of the ceded 
territory should be protected in the free enjoyment of their property rights) as the 
avowal of a principle which would have been held equally sacred, though it had not 
been inserted in the contract." For the citation of numerous other cases and 
expressions of official opinion on this subject, see i Moore, § 99. 

" Magoon, The Law of Civil Government and Military Occupation^ 305-315, 
463-471, 515-545, etc. The rights of property secured by copyrights and patents 
acquired by Spaniards was specifically protected by Art. XIII of said treaty. 
I Moore, p. 427. 

*^ Magoon, 194-209 and 454 Q. See also i Moore, § 99, pp. 425-429; and the 
cases of Sanches v. United States (1907) and the Countess of Buena Vista v. United 
States (1908), in 2 A. J. 678-688. For criticism of these decisions, see Bordwell, in 
^ A. J. (1909), 1 19-136. 



THE EXTINCTION AND SUCCESSION OF STATES 139 

what doubtful as to whether it succeeds to the whole of its pri- 
vate domain or property as well. The better opinion would seem 
,to be that it only succeeds to that portion of the private property 
of the ceding or dismembered State which is destined for local use. 
Thus, State-owned railways, telegraph and telephone plants, etc., 
pass to the annexing or new State ; ^ but State loans to corpora- 
tions or individuals should not, as a rule, be confiscated. In the 
case of privately owned railroads, the principle of succession 
only applies to the public rights of regulation or control. In view 
of the increasing tendency toward State socialism, this subject 
deserves more attention than it has yet received. 

There is a di£ference of opinion respecting the obligations of the 
new or annexing State to execute Uie contracts, concessions, or 
franchises, etc., granted by the ceding or dismembered State 
within the ceded territory or territorial borders of the colony or 
province which has achieved its independence. It would cer- 
tainly seem that such contracts and concessions should, as a 
rule, be respected, and this has been the general practice of nations 
for at least a century ; ^ but international practice is by no means 
uniform, and the rule is not without important exceptions. 

^ See especially Despagnet, No. 99; i Pi6deli^vre, No. 161; and z P.-Fod£r6, 
No. 161. 

" Such provisions were contained in the treaties of Campo Formio (1797), Paris 
(1814), ZOrich (1859), Paris (i860), London (1864), Vienna (1864), Frankfort 
(1871) , and Berlin (1878). The various treaties by which the United States acquired 
Ix>uisiana, Florida, and Texas contained similar stipulations. But these provisions 
have been ignored in several recent cases of cession or conquest, viz. by France in 
Madagascar (1896), by the United States in the treaty of Paris (1898) with Spain, 
and by Great Britain in South Africa (1900). i Moore, § 98, pp. 385-390, and 
Gidel, Des effels de V annexion sur Us concessions (1904), ch. 1 1. 

The United States of course acknowledged the validity of Spanish contracts 
and concessions in Cuba, Porto Rico, and the Philippines, which were of a purely 
local nature or in the exclusive interests of the inhabitants of these islands (i 
Moore, p. 406) ; but it refused to admit a legal obligation to continue payments to 
the Manila Railway Co., which was a concession with a guarantee of 8 per cent 
granted by Spain partly in the imperial and partly in the local interest. See i 
Moore, § 98, pp. 395 ff., and Magoon, op. cU.^ pp. 177 ff. See also Magoon, pp. 
529-531, for the opinion of this law officer that the United States was not legally 
bound to continue the payment of the Spanish subsidy to a telegraph company 
in the Philippine Islands. 

The Transvaal Concessions Commission Of 1901, which was appointed by the 
British Government to inquire into concessions presenting examples of mixed 
public and private rights granted by the South African Republic, declared: "It 
is clear that a State which has annexed another is not legally bound to any con- 



I40 ESSENTIALS OF INTERNATIONAL PUBLIC LAW . 

The general principle which should govern' this important but 
much neglected subject has been correctly stated by a leading 
Italian authority : " The annexing Government succeeds to the 
rights and obligations resulting from contracts regularly stipu- 
lated by the ceding government in the relative public interest 
of the territory ceded." ** 

To this rule there seem, however, to be several exceptions. 
The grant or concession must have been not merely regularly 
obtained or duly acquired, i.e. from the proper authority and 
with a proper observance of legal forms, but it must have been 
made in good faith.^ It must not be in violation of a treaty with 
the annexing or dismembered State nor contracted for the pur- 
pose of the war which results in annexation. The concession may 
also be canceled if the grantee has without lawful excuse failed 
to fulfill the essential conditions of the grant. The new govern- 
ment is, moreover, justified in canceling or modifying the con- 
cession in case it is injurious to the public interest or in conflict 
with the public order or the fundamental principles governing the 
legislation or policy of the annexing State. In the various classes 
of cases covered by the last sentence compensation or indemnity 
should, however, be made.*® 

tracts made by the State which has ceased to exist, and that no court of law has juris- 
diction to enforce such contracts if the annexing State refuse to recognize them." 
In conunenting upon these dicta, Westlake (I, pp. 81-82) observes: "The latter 
dictum is true, since courts of law are bound by the will of the sovereign power of 
the country, whether that will be just or unjust. The former dictum ... is to be 
explained by the narrow meaning which the commissioners evidently attached to 
the term * legal ' . . ." The Commissioners add : " But the modem usage of nations 
has tended in the direction of the acknowledgment of such contracts." And, 
with certain reservations, England appears to have acted on this principle. 

In the cases which were brought up for judicial determination, the British 
Courts declined to assert jurisdiction on the ground that annexation was an act of 
State, and they held that municipal tribunals lacked authority to enforce con- 
tractual obligations alleged to have been incurred by an adversary. The leading 
cases are those of Cook v. Spring (1899), A. C. 572; and the West Rand Central 
Gold Mining Co. v. The King (1905), 2 K. B. 498. See "Colonial Cases Relating 
to the Succession of States," in 3 Zeitschrift^ 618-620, and Westlake, in 17 Law 
Quar. Rev. 392 ff. 

** I Fiore, No. 356, p. 313. 

^ See on this point the instructions of Secretary Root, in i Moore, pp. 392 ff., 
and Magoon, 595 ff. 

'* For the exceptions, see Report of the Transvaal Concessions Commission in 
I Moore, § 98, pp. 41 1-414 ; and Gidel, Des effets de V annexion sur les concessions 
(1904), chs. 7-10. 



THE EXTINCTION AND SUCCESSION OF STATES 141 

The same principles of course apply to a colony or province 
which has achieved its independence.^ 

BIBUOGRAPHT 

Snccesaion and Bztinctioii of States. — Appleton, Des tfels de ratma^ 
ion sur les defies de Vitat demembri ou annexi (1895); Blimtschli, 
Arts. 46-61; Bry, Nos. 56-72; * Bonfils, Nos. 214-233; Cabouat, Des 
annexions de terrUaires et de leurs principales consSquences (x88i) ; i Calvo, 
5§ 9^106; I Cobbett, Cases, 68-76; Decamps, in 1$ R. D. I. P. (1908), 
385 ff. ;1 * Despagnet, Nos. 86-102 ; Field, Arts. 22-26 ; * i Fiore, Nos. 348- 
366 ; Gabba, Questioni di diritto civUe (1886) ; Gareis, § 16, pp. 59 fF. ; 
* Gidel, Des efets de V annexion sur les concessions (1904) ; Grotius, liv. 11, 

^ The authorities are very much divided as to the meaning and propriety of the 
phrase "succession of States." Several (e.g, Gareis, § 16, pp. 59 ff., and 2^m, 32, 
77) even deny that it ever takes place, and one (Liszt, § 23) only admits it in a few 
cases. Others maintain that it b a pure fiction or metaphor, whether useful or 
otherwise. But the majority accept the doctrine of succession either in pure or 
modified form. 

The Roman idea of succession upon death as the continuation of the person of the 
deceased by the heir was introduced into the Law of Nations by Grotius who said : 
" It is undoubted law that the person of the heir, in respect to the tx>ntinuation of 
public as well as private ownership, is to be conceived as the same with the person 
deceased " (lib. II, cap. 9, § 12). This view was adopted by Pufendorf and 
Vattel, but denied by the commentator Coc^ji, who daimed that the Grotian doc- 
trine of succession was a fiction based upon a principle of Roman private law which 
is inapplicable, in all its content, to Intemarional Public Law. On the views of 
Coc^ji, see Gidel, op. cit,y pp. 35 and 57 ff. 

Among the publicists who hold more or less strictly to the Grotilm doctrine of 
succession are : Despagnet, Nos. 90 £E. ; Hall, 99 ; 2 Halleck, 495 ; iF.de Martens, 
{ 67« pp. 368 f. ; and i Rivier, 70 fit. 

The following authorities are among those who hold to the doctrine of succession 
in nradified form : Bluntschli, Arts. 50, 54, and 55 ; i Calvo, §§ 99 ff. ; i Fiore, No. 
355 ; Heffter, § 25 ; i Oppenheim, §§ 80 ff. ; i P.-Fod6r6, Nos. 158 and 160. 

Among the publicists who evidently consider the phrase "succession of States" 
a mere fiction or metaphor are Appleton, Gabba, and Gidel, who have produced 
valuable monographs on this important subject. But Huber, the most important 
of them all, does not hesitate to use the phrase "Staatensuccession" as the title 
of his remarkable work. It must be admitted that these monographs are, for the 
most part, highly abstract and theoretical, and that their conclusions are often at 
variance with international practice. Thus Appleton (p. 51) holds that the annexed 
or extinguished State still continues to exist in spi^e of its loss of sovereignty ; and 
Gidel (chs. 3 and 4) bases his theory of "continuity" upon the right of the occupant. 
He claims that cession is a recognition rather than a source of rights. The views 
of Max Huber, although highly abstract, are more reasonable and are largely 
based upon a study of international practice. He declares (p. 18) : — 

"The notion of succession is a general one in law, and belongs exclusively neither 
to private nor to public law. Succession b a substitution plus continuation. The 
successor steps into the place of the predecessor and continues his rights and obliga- 
tions; so ffir the succession of private and public law agree. But we now have to 






142 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

cc. 9 and 19 ; * Hall (sth ed.), 91-^ ; i Halleck (3d ed.), 90-^2 ; Hartman^ 
§§ 12-13 » HeflFtcr, §§ 24-25 ; HoltzendorfF, in 2 Handbuch, 33-43 ; * Huber^ 
Die Staatensuccession /1898) ; Larriviere, Des amsSquences des transforma- 
turns terrUoriales des EkUs sur les traiUs anierieurs (1892) ; Lawrence (4th 
ed.), § 49 ; Liszt, § 23 ; iF.de Martens, §§ 66-69 ; * i Moore, ch. 4, §§ 92- 
99 ; I Nys, 399-401 ; * i Pi6deli^vre, Nos. 134-200 ; i Phillimore, Pt n, 
chs. 5-6; * I Oppenheim, §§ 79-84; i P.-Fod6r6, Nos. 156-163; * iRivier^ 
65-75, 213 ff. ; Seloss6, TraiU de V annexion au territoire franQois et de son 
d6membrement (1880) ; * Scott, Cases, 85-116 ; Snow, § 9 ; Taylor, §§ 163-168 ; 
Ullmann (2d ed.), §§ 31-34; i Westlake, 59-83; Wheaton, §§ 28r-32; 
I Wharton, § 5 ; Woobey, § 38. 

distinguish between those kinds of succesdon. A dvil successor who steps into the 
place of his predecessor steps into his rights and obligations as though he were him- 
self the predecessor. That is the universal succession of private law in the human 
sense, at least according to the prevailing doctrine. But the successor of inter- 
national law steps into the rights and obligations of his predecessor as though they 
were his own." Cited and translated by Westlake, I, p. 69. 

For an excellent review of the authorities, see Gidd, Des effeis de Fannexion 
sur les concessions (1904), ch. 2. 



CHAPTER IX 

THE ESSENTIAL SIGHTS AND DUTIES OF STATES 

131. Their Nature. — Until recently, authorities were gen- 
erally agreed that there exist certain essential or fundamental 
rights and duties of States which underly the positive rules and 
customs of International Law. These rights (to which are 
attached corresponding duties) are usually described as primary, 
inherent, absolute, fundamental, essential, permanent, etc. 
They were formerly identified with natural rights and formed part 
of the so-called law of nature. Some publicists now regard them 
as moral rather than legal principles, and a few even deny them 
altogether.^ But these rights have, in fact, a broader and deeper 
significance than the ordinary positive rules of the Law of Nations 
of which they are in large measure the ultimate basis or source, 
and have even greater obligatory force. Though far from abso- 
lute and not inherently unchangeable, they are in the nature of 
controlling or fimdamental principles based upon conditions 
essential to State existence and international life in our time. 

^ For example, Cavaglieri, in iSR, D. I. P. (191 1), 261 ; ^ Heilbom, 5^5(«m, 279*- 
306; Jellineki System, 302 ff.; i Oppenheim, § 112 ; and i Westlake, 293 ft. 

Jellinek considers the fundamental rights of States tautological, and Heilbom's 
main argument appears to be that they lack sanction or are included under other 
categories. But the lack of sanction is not greater than in the case of many of the 
more positive rules of International Law. The fact that authorities are not fully 
agreed on the content of the fundamental rights and duties of States is no proof 
of their non-existence. Oppenheim says he agrees with the publicists dted above, 
but he admits these rights and duties under a different name. 

The most suggestive treatment of this question is by Pillet, in$R.D, I. P, (1898), 
66 ff., 236 ff. ; but many of his suggestions are too tentative for acceptance in a 
textbook. 

Some of the older publicists adopted the Thomasian classification of perfect and 
imperfect rights and duties. This division is now generally abandoned. See i 
Westlake (153, 285, 288) for a modem instance of adherence to the doctrine of 
imperfect rights. 

143 



144 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

I. The Right of Self-preservation 

132. The Rifi^t of Self-presenration. — The most important 
of these fimdamental rights of States is that of existence, which 
involves the rights of self-preservation and defense. To this 
right there is attached the corresponding duty of respecting the 
existence of other States. The right of self-preservation takes 
precedence, in a sense, of all other rights and duties, and is more 
than a right in the ordinary use of this term. It is a principle 
which underlies all positive rules and customs, and is based 
upon an instinct which 'in the last resort controls all living 
organisms. 

A State has unquestionably the right, imder modem conditions, 
to make such preparations and to take such measures as it may 
deem necessary for its own safety and defense, but it has no 
right to make a disposition of its forces or assume an attitude 
threatening to the existence or safety of another State. It is 
also boimd to use due diligence or the means at its disposal to 
prevent organized conspiracies or military preparations against a 
friendly State on its own soil, as also to forbid the direct use of its 
territory and resources for hostile purposes. In short, it is xmder 
obligations to preserve a strict and impartial neutrality between 
warring Powers. 

The right of self-preservation* includes the right to preserve 
the integrity and inviolability of its territory with the correspond- 
ing duty of respecting that of other States. In order to protect 
and preserve this right, it may in extreme cases of necessity' 
commit what would ordinarily be an infraction of the Law of 

* Some publicists (e.g. Bonfils, No. 243 ; Chretien, Nos. 187 ff. ; i Pradier- 
Fod6r6, Nos. 219 and 261 ; and i Rivier, 265-268) also include the right of progress 
or perfectibility, i.e. the development of power, resources, etc., but these are 
certainly not legal or positive rights. 

* The excuse of necessity is denied by Bonfils, No. 242 ; i M6rignhac, 246 f . ;• 
1 Piddeliivre, No. 207 ; and i Westlake, 297 fiP. 

It IS admitted by Grotius, lib., c. II; §§ 6-10; Hall, Pt. II, ch. 7; Heffter, 
§ 30; I Phillimore, Pt. Ill, ch. 10; i P.-Fod6r6, Nos. 220-234; i Rivier, 277-279; 
I Twiss, § 102 ; and Vattel, liv. II, c. 9, § 119. 

The excuse of necessity may, as some publicists assert, be theoretically unsound 
and practically dangerous (being liable to abuse) ; but, as Pradier-Fod^r6 (I, p. 
367) observes : "This theory, however admirable for saints and heroes, is not made 
for common humanity ;" or, as Westlake (I, 307) remarks in another connection : 
"Laws are made for men and not for creatures of the imagination." 



/ 



ESSENTIAL .RIGHTS AND DUTIES OF STATES 145 

Nations and violate the territorial sovereignty or international 
right of another State, as was done, e.g. by England through the 
seizure of the Danish fleet in 1807,^ by Canada in the case of the 
Carolinej^ by Spain in the case of the VirginiuSy^ and by Japan 

* The seizure of the Danish fleet by England in 1807 to prevent its falling into 
the hands of Napoleon has been almost unanimously condemned by Continental 
writers. Naturally it has been upheld by British publicists like Hall (268 f.) and 
Westlake (I, 302 f.)- Surely an American is capable of rendering an impartial 
verdict. See the conunents of Captain Mahan {Influence of Sea Power upon the 
French Revolution^ II , 277), who justifies the seizure. This so-called act of '' pi- 
racy'' or ''brigandage" appears to have been wholly justifiable. See also Rose, 
Life of Napoleon y II, 129 fF..; Ihid.^ Napoleonic Studies ^ 133-152. 

* During the Canadian insurrection in the winter of 1837-1838, the American 
steamboat Caroline, was being used by Canadian insurgents and their Ameri- 
can sympathizers to transport recruits and military supplies from Schlosser, N.Y., 
on the American side of Niagara River, to Navy Island, the headquarters of the 
insurgents. This island, through which ran the boundary line between Canada 
and the United States, was located in the midst of the Niagara River. It was 
believed that the Caroline would also be used to transport the expedition from 
Navy Island to the Canadian shore. On the night of Dec. 29, 1837, she was seized 
by Canadian forces at Schlosser, N.Y., and set adrift over the Niagara Falls. It 
appears that only two persons were killed. 

In the course of the correspondence between the American and British Govern- 
ments which followed the arrest and imprisonment in 1841 of McLeod, one of the 
supposed British participants in the seizure of the Caroline, on a charge of murder, 
Daniel Webster, then Secretary of State, laid down the rule which Lord Ashburton 
admitted was applicable to the case. 

Webster contended that to justify the conduct of the Canadian authorities, Eng- 
land must show a ''necessity of self-defense, instant, overwhelming, and leaving no 
choice of means and no moment for deliberation ..." as also that the "local 
authorities of Canada did nothing unreasonable or excessive, since the act justi- 
fied by the necessity of self-defense must be limited by that necessity and kept 
clearly within it." Professor Westlake (I, p. 300) justly remarks : "This was good 
law, except as to the emergency's leaving no moment for deliberation." 

It should be added that reparation by way of apology or idemnity should always 
be promptly made for such violations of territorial sovereignty or international 
rights. Lord Ashburton expressed regret that an explanation and apology for 
this "violation of territory" had not been made immediately. 

On the case of the Caroline, see especially 2 and 7 Moore, Digest, §§217 and 
300. See also 3 Ibid., Int. Arbitrations, 2419 ff. ; Gen. Scott, Autobiography, 1, 305- 
317; Hall, 270-271; Lawrence (3d ed.). Principles, § 249; Snow, Cases, 177- 
178; and I Westlake, 300 f. 

* The case of the Virginius is more doubtful. The Virginius was the property of 
Cuban insurgents and was employed in aid of the Cuban rebellion against Spain 
during the Ten Years' Insurrection (i 868-1 878). Registered as an American vessel 
and carrying the flag of the United States, she was captured by the Spanish man- 
of-war Tornado about ten or fifteen miles from the coast of Jamaica on October 
31, 1873. The pursuit had begun and ended on the high seas. 

The Virginius was taken to Santiago de Cuba, where, after a summary trial by 
court-martial, fifty-three of her officers, crew, and other persons on board (include 

L 



146 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

m the invasion of Korea and Manchuria at the outbreak of the 
Russo-Japanese War. 

II. The Right of Independence 

133. The Right of Independence. — The second essential 
right of States is that of sovereignty, or autonomy and independ- 
ence. This right involves the corresponding duty of respecting 
the autonomy or internal sovereignty and the independence or 
external sovereignty of other States, and it results from that 
liberty or freedom from restraint which is a necessary condition 
for the exercise of State activity. As indicated in a previous 
chapter, this independence or external sovereignty is far from 
absolute or unlimited ; ^ it is a question of degree, and should be 
measured by the amount of liberty which it is needful or desirable 
that a State should have in order properly to perform its functions 
— international as well as national. 

134. Rights flowing from Sovereignty and Independence. — 
The following are the most important of the rights flowing from 
that of sovereignty, or autonomy and independence : — 

ing Americans, Englishmen, and Cubans) were condemned to death and executed 
as pirates. The remainder were held as prisoners and afterwards surrendered to the 
United States. Mr. Williams, the Attorney-General of the United States, gave it 
as his opinion that the Virginius ''was as much exempt from interference on the 
high seas by another power, on that ground, as though she had been lawfully regis- 
tered." 

As agreed upon, the vessel was afterwards delivered to the navy of the United 
States with the American flag flying ; but owing to proof by Spain of her fraudulent 
registry, the salute to the flag was dispensed with. Spain also paid to the United 
States an indemnity of $80,000. 

The British Government also demanded and obtained compensation for the fami- 
lies of the executed, but did not complain of the seizure of the vessel, which it evi- 
dently regarded as justifiable on the grounds of necessity or self-defense. This 
seems to have been the correct view. It is also the view of Taylor (§§ 404 ff.), 
Woolsey (§ 214), and Westlake (I, 167 ff.). Hall (267 and 275 ff.) is doubtful. 

Of course the plea of necessity or self-defense can in no wise be extended to the 
execution of the prisoners. That was a gross and unwarranted outrage. The 
charge of piracy was absurd. One is surprised to see this charge justified to a degree 
in Soott*s Cases f p. 322 n. 

On the case of the Virginius^ in addition to the authorities cited above, see 
especially 2 Moore, Digest^ pp. 895 ff., 967 ff., 980 ff. ; Chadwick, The Rdctions oj the 
United States and Spain, chs. 16 and 17, pp. 314 ff. ; and De Olivart, 4 jR. D. I. P. 
(1897), 611 ff. 

^ For the main restrictions on independence or external sovereignty, see supra^ 
ch. 6, § 95. 



ESSENTIAL RIGHTS AND DUTIES OF STATES 147 

(i) To establish, maintain, and change its own constitution 
or form of government and select its own rulers. This implies the 
right of social and political revolution, even if effected by violent 
means.® Unless such revolutions become chronic and fail to 
afford reasonable protection to the lives and property of foreign- 
ers, other States have no right to intervene for the restoration of 
order or the institution of a stable and responsible government. 

(2) To negotiate and conclude treaties and alliances which are 
not in violation of International Law, and to maintain diplomatic 
intercourse with other members of the international community. 

(3) To make and change its own laws, subject to the qualifica- 
tion that these should be in conformity with the rules and prin- 
ciples of the Law of Nations. A sovereign State has especially 
the right to make rules and regulations regarding religion, re- 
strict or prohibit immigration, etc. — rights which are some* 
times denied. 

(4) To administer its own laws and create its own administra- 
tive machinery. 

(s) With some exceptions, to be noted hereafter,' to exercise 
exclusive jurisdiction over all persons and things within its 
territory. 

(6) Without violating the rights of others or prohibiting inter- 
jiational intercourse, to frame its own policies, more especially 
those of a commercial nature. 

135. Intervention. — The right of sovereignty or autonomy 
and independence implies the duty of non-intervention in the 
internal and external affairs of other nations by forcible means. 

The subject of forcible intervention,^" which may be defined as 

' It is impossible for any one who believes in progress to agree with those authori- 
ties who maintain that it is permissible to crush revolutions which threaten the 
security of other States by reason of their ideas or principles. 

• See infray §§ 166, 209, 211, 270 ff., 287 ff. 

^^ Armed or forcible intervention should be distinguished from mere diplomatic 
intervention which is unaccompanied by a threat or the use of force. Such inter- 
position usually takes the form of notes addressed to a foreign government in which 
grievances are stated, claims urged for injuries or non-payment of obligations, or 
protests made against alleged wrongs, bad treatment, or unjustifiable conduct. 

Intervention should also be carefully distinguished from the following acts :. 
i) Mediation or the use of good offices between States on the verge of or during 
hostilities. 2) Purely defensive measures by way of preparation for war. 3) Meas* 
ures of retorsion and reprisal which are essentially retaliatory in their nature. 
4) Mere intercession or friendly advice. 5) Alliances showing an intention to assist 



148 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

dictatorial {i.e. as implying the use. or threat of force) inter- 
ference in the affairs of another nation, is one of great difficulty 
and complexity. This arises from the fact that nowhere else 
within the wide range of international relations does there exist 
such an apparent conflict between political theory or fimda- 
mental principles on the one hand and actual international 
practice on the other. 

136. The Principle of Non-intervention. — The whole modem 
or Grotian system of International Law rests upon the doctrine 
of the legal equality and independence of sovereign States. This 
doctrine presupposes full liberty of action on the part of each 
sovereign within his own sphere or jurisdiction, and non-inter- 
ference in the internal or external affairs of other sovereigns. 
The principle of non-intervention is, therefore, a necessary 
corollary of the doctrine of the equality and independence of 
sovereign States and must be considered a fundamental principle 
of International Law. 

But International Law is supposed to rest upon international 
practice as well as upon fimdamental principles; and when we 
examine the actual practice of nations, more especially that of the 
Great Powers during the nineteenth century," we find numerous 
examples of armed intervention on all sorts of groimds and 
pretexts. 

or cooperate in case of war. 6) War itself — a status to which intervention often 
leads, but which it may be intended to avoid. 

The intervening State may, however, use the various coercive means which are 
applicable in war, such as the occupation of a port, or the seizure of a strategic 
position, etc. Or it may prefer measures of self-help which fall short of war, as an 
embargo, pacific blockade, etc. Often a mere veiled threat has the desired effect. 

Recognition of the independence of a revolted community, if premature, may be 
a disguised intervention. Recognition of belligerency, even if premature, does not 
amount to an intervention. 

" During antiquity intervention was the rule rather than the exception. The 
history of the Roman Republic is that of a long series of interventions. Under the 
Roman Empire, intervention lost its significance as an act of interference in the 
affairs of foreign nations, and acquired the character of a legal and legitimate exer- 
cise of the generally recognized sovereignty of Rome. 

In the absence of anything like the city-states or the great Empires of the ancient 
world on the one hand or of the nations and states-system of the modem world 
on the other, we can scarcely speak of intervention in the proper sense of this term 
in connection with the history of the Middle Ages. But it should be noted that 
Popes, Emperors, Kings, feudal lords, etc., were continually interfering in one 
another's affairs. The wars of religion of the sixteenth and seventeenth centuries 
afforded new pretexts for intervention. 



ESSENTIAL RIGHTS AND DUTIES OF STATES 149 

137. Classification of Interventioiis. — Broadly speaking, in- 
terventions may be thus classified : — 

(i) Interventions on grounds of morality or hmnanity, i.e. to 
put an end to great evils and acts of injustice, such as gross forms 
of cruelty and oppression, religious persecution, needless effusion 
of blood, danger of race extermination, etc. 

(2) Interventions on grounds of policy or interest, e.g. to main* 
tain the Balance of Power, to prevent the spread of political 
heresy, to crush dangerous revolutions, to advance the general 
welfare or the collective interests of civilization, etc. 

(3) Interventions on so-called legal grounds, for the sake of 
self-preservation, to prevent or terminate an illegal or unjusti- 
fiable intervention by another State, in pursuance of a right to 
intervene granted by treaty or to enforce treaties of guarantee, 
for the protection of the lives and property of nationals of the 
intervening State, and to secure the enforcement of rights 
guaranteed by treaty or International Law. 

158. Intervention on Legal Grounds. — Authorities have al- 
ways differed widely on what constitute legal or justifiable 
groimds for intervention, or, indeed, as to whether any such 
right exists. The only approach to unanimity is in respect to 
intervention for the sake of self-preservation, which, be it 
observed, is not, properly speaking, a right or law in the ordinary 
sense of these terms as applied to positive rules and regulations. 

The publication of Machiavelli*s Prince in 15 13 undoubtedly contributed to the 
frequency of the practice of intervention during the centuries which foUowed. He 
recommended intervention in war on the ground of self-interest alone, and char- 
acteristically advised his Prince never to remain neutral in any war in which his 
neighbors might become involved, inasmuch as "it is always more advantageous 
to take part in the struggle." 

On the contrary, Grotius set up the principle that the mere possibility of being 
attacked does not justify intervention, though he admitted that the aggrandizement 
of another State may operate as a casus belli in a war which is otherwise just. He 
urged the neutral State to "do nothing which may strengthen the side which has the 
worse cause, or which may impede the motions of him who is carrying on a just 
war ** — a position which obviously falls far short of the modem view of the obliga- 
tions of neutrality. Grotius, however, set up the principle of justice and equity as 
opposed to the Machiavellian doctrine of self-interest as the guiding star through 
the troubled sea of international relations. See The Prince, ch. 21 ; and De jure 
belli ac pacis, lib. IH, cap. i7» § 3- 

These two principles may be said to have striven for mastery ever since the days 
of Machiavelli and Grotius. For further facts bearing on the history of interven- 
tion, see supra, ch. 4. 



I50 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

but a fundamental right or principle which underlies and takes 
precedence of all systems of positive law and custom. To justify 
intervention on this groimd, the danger must, of course, be direct 
and immediate, and not merely contingent or remote." 

Aside from the need of self-preservation, the only cases in which 
intervention may be said to be in a sense legally justifiable are 
the following : — 

(i) In pursuance of a right to intervene granted by treaty, or 
to enforce treaties of guarantee provided these do not stipulate for 
the maintenance of a particular dynasty or a particular form of 
government in the State to which the guarantee is applied." 

(2) To prevent or terminate an illegal intervention on the part 
of another State, as in the case of the United States against the 
French in Mexico in 1865. It cannot be maintained that this is a 
duty as well as a right, for States cannot afford to spend their 
strength and resources in redressing wrongs unless their interests 
are seriously involved. 

(3) To protect the lives and property of the nationals of the 
intervening State, and to secure the enforcement of important 
rights granted by treaty or recognized by the Law of Nations. 
Intervention in these cases should, however, always be diplomatic 
in character, and forcible means should never be employed imless 
as a last resort.^* Mere danger of injury to the lives or property 

" The seizure by England of the Danish fleet in 1807 (cited in note 4) is a good 
example of intervention on the ground of self-preservation or imminent danger. 

• The numerous interventions for the preservation of the Balance of Power in 
Europe are often used to illustrate this same principle. But many of them were 
mere pretexts, and it is generally difficult, if not impossible, to determine in a given 
case whether and to what extent the principle of self-preservation was involved. 
Certainly in most cases the danger was remote rather than immediate. These 
should be classed as political interventions. 

** Such stipulations in a treaty of guarantee are probably null and void, inas- 
much as they constitute a denial of one of the essential rights of independence. 
See especially Milanovitch, Des iraiUs de guararUie (1888), 37 ff. 

** Art. I of the Second Hague Convention (1907) respecting the Limitation of the 
Employment of Force for the Recovery of Contract Debts declared : — 

"The Contracting Powers agree not to have recourse to armed force for the 
recovery of contract debts claimed from the Government of one country by the 
Government of another country as being due to its nationals. 

"This undertaking is, however, not applicable when the debtor State refuses or 
neglects to reply to an offer of arbitration, or, after accepting the offer, prevents 
any agreement {compromis) from being agreed on, or, after the arbitration, fails 
to submit to the award." 

This same principle should be applied to all claims of a pecuniary nature. 



ESSENTIAL RIGHTS AND DUTIES OF STATES 151 

of foreigners affords no ground for intervention, inasmuch as 
aliens, unless in case of discrimination against them, can claim 
no special exemption from the ordinary risks run by nationals 
during times of riot, insurrection, or dvil war. 

139. Intervention on Moral and Humanitarian Grounds. — 
International practice also admits other exceptions to the rule of 
non-intervention, on moral or political grounds. Forcible inter- 
ference in the internal affairs of another State has been justified 
on grounds of humanity in extreme cases like those of Greece, 
Bulgaria, and Cuba, where great evils existed, great crimes were 
being perpetrated, or where there was danger of race exter- 
mination. The hiunanity of our time, combined with an in- 
creasing desire for justice and a growing consciousness of interde- 
pendence and international solidarity, will doubtless make such 
interventions more frequent in the f utiure than they have been in 
the past." But to prevent their being used as mere pretexts, 
interventions on groimds of morality and humanity should be 
collective in character, i.e. there should be at least several parti- 
cipants, or if one nation intervenes, it should act as the agent or 
mandatory of the others. 

140. Interventions on Political Grounds. The Balance of 
Power and the Monroe Doctrine. — There remains for consider- 
ation intervention on political grounds. The leading Powers 
of Europe have always maintained a "set of primary inter- 
ests," for the maintenance of which they have not scrupled 
to intervene whenever occasion demanded. In the seventeenth 
and eighteenth centuries they frequently combined to preserve 
the Balance of Power — a system based upon the idea of an 
equilibrium of forces. Endangered by Louis XIV, this system 
was revived by the Peace of Utrecht in 1713. Temporarily 
destroyed by Napoleon I, it was restored at the Congress of 
Vienna in 1815. In the name of the so-called " Holy Alliance," 

" For example, with our present knowledge of the causes of disease, it can hardly 
be supposed that States would hesitate to intervene, if necessary, in order to prevent 
the spread of a disease like cholera. 

The time may be not far distant when nations will not hesitate to use their power 
of intervention to prevent or terminate an unnecessary or unjustifiable war by insist- 
ing on arbitration or some other peaceful method of adjusting their disputes. They 
would be justified in doing so because of the injurious effects of modem war on oomr 
merce as well as on grounds of humanity. 



152 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

the Quadruple Alliance, formed at Paris, Nov. 20, 1814, undertook 
to prevent and to crush revolution in Italy and Spain, and even 
threatened to extend its activities to the Western Hemisphere. 
It was mainly against the extension of this system of intervention 
to Latin America that the Monroe Doctrine was proclaimed in 
1823,^* a doctrine which also included a declaration that the 
American Continent was not open to further colonization. The 
Monroe Doctrine has since been more fully developed, and, in its 
existing form, may be defined as the prohibition of any further 
acquisition, colonization, or permanent occupation of American 
territory by any European Power. 

141. The European Concert of Powers. — In the course of the 
nineteenth century, the European idea of a Balance of Power 
gradually developed into that of the European Concert — a sort 
of loose Confederacy of five or six of the leading Powers whose 
members now usually interfere jointly or collectively in matters 
which are deemed of paramount importance. They have thus 
intervened in the affairs of Holland and Belgimn, Greece, etc., but 
their principal field of activity has been the Ottoman Empire, 
where their interventions have been so constant and frequent as to 
create, in the opinion of some publicists, a body of juriq)rudence 
which is part of the public law of Europe. 

Toward the close of the nineteenth century they attempted to 
extend their system to the Far East, but encountered the diplomatic 
opposition of the United States and the armed resistance of 
Japan. 

It should especially be noted that the whole fabric of European 
supremacy in Asia and Africa rests upon this system of political 
intervention — a policy which the Powers are now beginning to 
apply jointly or collectively instead of severally, as was formerly 
the case. 

142. The Primacy of the United States in America. — A 
political Primacy, similar in kind, though of a less positive 
character, is wielded by the United States on the American 
Continent. It is a Primacy essentially political in its nature 

'* For references on the Monroe Doctrine, see supra y p. 73. For Bibliographies 
on the Monroe Doctrine and American Diplomacy, see Oilman's Monroe 
(188S) in Am. Statesmen Series, 269 ff.; and Hart, Foundations of American 
Policy, 248 flf. 



ESSENTIAL RIGHTS AND DUTIES OF STATES 153 

which has no legal basis whatsoever, but which rests upon certain 
maxims enunciated by the fathers of the Republic and apph'ed 
by American statesmen. Based originally upon the principle of 
non-intervention in the affairs of Europe, the Monroe Doctrine 
is essentially a system or policy of intervention derived from our 
conception of primary or permanent American interests. 

With one exception," the United States has confined its interven- 
tions to American affairs. The most notable instances have been 
the intervention against the unjustifiable interference of Napoleon 
III in the affairs in Mexico in 1865 ; the intervention on groimds 
of humanity and American interests in behalf of Cuba against 
Spain in 1898 ; and the premature recognition of the independ- 
ence of Panama (really a disguised intervention) by President 
Roosevelt in the " interests of collective civilization " and of 
the United States in 1903. 

143. Collective Intervention. — Theoretically, intervention on 
political groimds should likewise be collective. It is actually 
becoming so in Europe, where the Great Powers usually act in 
concert in the solution of European problems. But the Monroe 
Doctrine forbids European intervention in American affairs, and 
no Concert of Powers has thus far been developed on the Ameri- 
can Continent. 

144. The Doctrine of Non-intervention. — The present tend- 
ency among publicists^ is toward the acceptance of the 

^^ The participation of the United States in the interventiou of the Powers 
against China during the great Boxer Uprising of 1900. The protests of Secretary 
Hay and President Roosevelt against the treatment of the Jews in Roumania and 
Russia in 1902 and 1903 were not interventions in the proper sense of this term. 
One is surprised to see Mdrignhac (TraiU, II, p. 299 and n.) so characterize them. 

" The principle of non-intervention appears to have been first put forth by Kant 
in his Essay on Perpetual Peace published in 1795. **^^ State should interfere 
in the constitution or government of another State." Art. 5. In 1798 Washington 
wrote to Lafayette to the effect that no government should interfere in the internal 
affairs of another government, unless it acted in the interest of its own security. 
See 2 Nys, /«/. Law, 187. For the attitude assumed by France during the Revolu- 
tion, see supra, § 66. But owing to the reaction which followed, little headway was 
made in securing support for the principle of non-intervention before the Revolu- 
tions of 1830 and 1848, except in the United States and England. In 182 1 and 
1823 Lord Castlereagh and Mr. Canning laid down the English doctrine that in- 
tervention is only to be justified on grounds of necessity, i.e. danger to "immediate 
security or essential interests." The fiasco of Napoleon III in Mexico (1861- 
1866) seems to have aided in discrediting the doctrine of the right of intervention 
still prevailing on the Continent at that time. 



154 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

principle of non-intervention as the correct and normal rule 
of international practice. But most of them admit intervention 
as a legitimate exercise of sovereign power in extreme and ex- 
ceptional cases on high mq^al or political rather than on purely 
legal grounds, as, e.g. in case of the commission of great crimes 
against humanity (Greece, Bulgaria, Armenia, and Cuba), or 
where essential and permanent national or international interests 
of far-reaching importance are at stake (Ottoman Empire in 1865, 
or Panama). 

It seems necessary to admit another class of exceptions to the 
rule of non-intervention. The application of this important 
principle in its fullest extent is necessarily limited to fully sover- 
eign States and to nations which possess governments capable of 
maintaining a fair degree of order and of affording reasonable 
protection to the lives and property of foreigners. Whether such 
States as those of Central America, with all their boasted sov- 

Among modem publicists who either deny a right of intervention or accept the 
principle of non-intervention (with or without exceptions), the following may be 
cited: Bluntschli, Arts. 68, 474-480; Brocher de la Flech6re, in 26 R. D. I. (1894), 
415-431; ♦Bonfils (Fauchille), Nos. 295-324; Bourgeois, in 4 jR. D. /. P. (1897), 
746 ff. ; Bry, Nos. 96 ff.; Camazza-Amari, in 5 R. D. /. (1873), 353~389 and 
531-561 ; Despagnet, Nos. 193 ff. ; i H^leck (3d ed.), 95 ff. and 512 ff. ; Heffter 
(Geffcken), §§ 44-46; i Fiore, Nos. 569 ff; Geffcken, in 2 Holtzendorff , 131-168; 
De Floecker, De Vintervention (1896), ch. 2, § 3; Funck-Brentano et Sorel, PriciSf 
212-216; * Kebedgy, De VitUervetUion (1890), ch. 2, pp. 39 ff. ; Liszt, § 7, pp. 60 
ff. ; I F. de Martens, § 76; i M6rignhac, 284 ff. ; Neumann, § 14; 2 Nys, 182- 
193 ; I Pi6delidvre, Nos. 289 ff. ; • i P.-Fod6r6, Nos. 287 ff., especially 355 ; 
* Rivier, 389 ff.; * Rougier, Les guerres civUeSj Pt. Ill, chs, i and 2, pp. 315-370; 
Vattel, liv. IV, §§54-^2; Walker, Manual, §§ 5-7; Ibid., Science, 112, 151; 
Wheaton, §§ 63-71 ; Wilson, § 23 ; Wilson and Tucker, § 41 ; Woolsey, § 43. 

Several of the authorities cited above (De Floecker, Funck-Brentano et Sorel, 
Pi6deliivre, and P.-Fod6r6) deny the legal character or validity of the principle 
of non-intervention, as well as that of intervention. The majority hold that the 
correct rule of International Law is non-intervention, but that interx^ention is either 
legally or morally permissible in extreme cases. Even those authorities who 
appear to admit a legal right of intervention {e.g. Amtz, in 8 R. D. I. (1876), 675 
ff. ; • Amos, Remedies for War, 75-81, 139-162 ; Creasy, 278-296 ; ♦ HaU, Pt. II, ch. 
8 ; * Lawrence, Pt. II, ch. i ; Kebedgy, op. cU.; * i Oppenheim, §§ 134 ff. ; i Philli- 
more, Pt. IV, ch. i ; i Westlake, 304-308) restrict its application as much as possible. 

On the right of collective intervention, see especially Hall (6th ed.), 287 ff., 
188 ff. and 281 ff. ; Dumas, Les sanctions de V arbitrage, 166 ; Homing, in 18 if. D. I. 
(1886), 188 ff. and 281 ff. ; Rolin Jecquemyns, in 8 R. D. I. (1876), 295, 673. 

For divers views and instances of intervention, the student is especially referred 
to I Calvo, §§ 110-207; 6 Moore, Digest, ch. 19; 3 Moore, Int. Arbitrations, 2313- 
2447 » I P.-Fod6r6, Nos. 287 ff. ; and i Wharton, Digest, 45-72. 



ESSENTIAL RIGHTS AND DUTIES OF STATES 155 

ereignty ) are capable of affording such a degree of order and pro- 
tection is, to say the least, very doubtful. 

145. Hie Nature of Intervention. — Like war, intervention is 
not, commonly or strictly speaking, a law or a right in the 
ordinary legal sense of these terms, although, like war, it may 
become a source of legal rights and duties. Like war, it is 
really an exerdse of sovereign or high political power — a right 
inherent in sovereignty itself. The government which intervenes 
performs a political act. " It is a high and sunmiary procedure 
which may sometimes snatch a remedy beyond the reach of 
law;"^' but which is usually either a justifiable exception to 
the ordinary, everyday rule of non-intervention or an act based 
upon the mere possession of physical force. Inasmuch as a 
sovereign who chooses to exercise this supreme political power 
cannot be restrained except by the counter use of force, it may 
become necessary for another or other interested sovereigns to 
assert a similar political power and intervene against such 
unjust or injurious act of intervention.^ 

III. The Right of Legal Equality 



146. The Right ci Legal Equality. — The third essential right 
of sovereign States is that of equality before the law. All 
independent States, however weak or powerful, have the same 
legal rights and obligations.^ To this right there attaches the 
corresponding duty of respecting the legal equality of other 
States. This principle, which is almost universally admitted,^ 
is a necessary consequence of the fundamental right of sovereignty 

'* Letters by Historicus (1863), p. 41. 

^ Considerable portions of the text on intervention are drawn from the following 
articles to which the student is referred for a fuller exposition of the author's pre- 
viously expressed views on this subject: "Intervention and Recognition of Cuban 
Independence, " in 1 1 i4 nnals of the Am. A cademy of Social and Political Science (i 898) , 
353 ff*; "Justification for Intervention," in 31 Review of Reviews (1905), 199 ff.; 
"The Calvo and Drago Doctrines," in i i4. /. (1907), 26,45; <uid "The Situation 
in Nicaraugua," in 68 Independent (1910), 74. 

'^ From the rules of equality and independence must be excepted half-civilized 
and part-sovereign States together with those under Suzerainty and Protectorates. 

" This principle is denied or doubted by a few leading authorities : Lawrence, 
Principles (3d ed.), S 134; Jbid. (4th ed.),S§ 112 fif.; i Lorimer, p. 170; Pillet, in 
S R, D, L P. (1896), 70 ff. ; I Westlake, 308-309 ; Ibid., Chapters, ch. 7. 



156 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

and independence. As Vattel ° said : '' A small republic is no 
less a sovereign State than the most powerful Republic." Or, 
as Chief Justice Marshall expressed it : " Russia and Geneva 
have equal rights. It results from this equality that no one 
can rightfully impose a rule on another. Each legislates for 
itself, but its legislation can operate on itself alone." ^ 

Each sovereign State has also the right of selecting such 
arms and flags, etc., and of conferring upon its rulers such 
rank and titles as it chooses, though it cannot always insist upon 
their recognition by other States. Though their influence varies 
greatly, all members of the international community have one 
vote and one vote only at International Congresses and Confer- 
ences where ^ the vote of the weakest State counts equally with 
that of the strongest. 

There still exist, however, certain differences of rank between 
States which have not wholly disappeared from international prac- 
tice. Monarchies and great Republics enjoy what are called royal 
honors, which entitle these States to the exclusive and reciprocal 
privilege of sending diplomatic agents of the first rank (am- 
bassadors) with rights of precedence and a certain priority of 
rank.** 

Because States differ greatly in political power and influence, it 
does not follow that they are unequal in legal rights and obliga- 
tions. Just as there is a natural and artificial inequality between 
individuals whose evil effects are visible even in the adminis- 
tration of justice, so there are natural and artificial inequalities { 
between States which are sometimes shown in a violation of the 
rights of the weak by the powerful. 

Moreover, as pointed out previously,^ the Concert of the six 

" Preliminaries, 5 18. 

** The Antelope (1825), 10 Wheaton, 66, 122. Cf. Sir Wm. Scott, in the Louis 
(181 7), 2 Dod. 210, 243. 

" To avoid questions of rank and precedence, the principle of the altemal has often i 

been used. E,g. in signing documents, certain Powers alternate, in such a manner . | 

that each Power occupies the first place in the list of signatures, in the copy which it 
receives. The alphabetical device was employed at the recent Hague Conference, 1 

i.e. the Powers signed as they were seated — in alphabetical order. , 

It is of interest to note that, though the French language is usually employed at 
these Conferences, each State has the privilege of using its own language. 

** The monarchical chiefs of these States also address each other as brothers. | 

" Supra, K 141 -142. 



ESSENTIAL RIGHTS AND DUTIES OF STATES 157 

Great Powers in Europe and the United States in America 
assert and maintain a sort of Primacy or Hegemony. These are 
facts of vast importance and significance, but their leadership is 
political in character and has no legal basis whatever. Neither 
the United States nor the Great Powers have any definite rules 
of conduct, they have no permanent organization or machinery, 
their action in any given case is by no means certain. They deal 
with each particular situation as it arises from political motives 
and by political methods. 

It may have seemed to some publicists a few years ago that 
^' Europe is working round again to the old notion of a conmion 
superior;"^ but such important social and political events 
as the rise of modem Japan, the Turkish and Chinese Revolu- 
tions, and the Hague Peace Conferences have tended to dis- 
credit such prophecy. 

IV. The Right to Respect 



147. The Right to Respect. — From the rights of sovereignty 
and equality flows a fourth fundamental right of States — the 
right to respect.® A failure to observe the forms of respect due 
a sovereign State is usually regarded as an affront to its dignity, 
and may entail serious consequences. It involves the duty of a 
reciprocal observance of certain rights and ceremonial forms. 
These include diplomatic privileges, — a topic which will be con- 
sidered in a subsequent chapter,*^ — the observance of a certain 
etiquette in diplomatic intercourse, and the use of the custom- 
ary military and maritime ceremonials between armies or be- 
tween vessels, and between vessels and forts belonging to 
different States.*^ 

^ E.g. Lawrenoe (3d ed.), Principles, § 134. For a recent attack on the princi- 
ple of the legal equality of States, see Hicks, in 2 i4. /. (1908), 530-561. But 
legal equality does not necessarily imply equality of voting power, as Mr. Hicks 
appears to think. 

" Some publicists speak of a right of reputation in this connection. This is 
obviously absurd. 

*• See infra, ch. 17. . 

'' These ceremonials have no longer the importance they had in the days when 
they implied pretentions to supremacy over portions of the high seas. As far as the 
open sea is concerned, they are mere matters of courtesy. But States may require 
the observance of certain maritime ceremonials within territorial waters. 

For details regarding the rules of Military and Maritime Ceremonial, the student 



158 ESSENTIALS OF INTERNATIONAL PUBUC LAW 

The right to respect is especially held to include : (i) Respect 
for a State's moral and political personality as represented by its 
sovereigns, warships, and diplomatic agents. This is shown by 
paying the customary honors and marks of respect. Besides, a 
State may not appropriate the flag, arms, etc., nor copy the 
emblems or inscriptions found on the coins of another State. 
(2) Respect for its dvil or legal personality. Unless there is 
weU-grounded suspicion of a denial or gross perversion of justice, 
fidl faith and credit should be given in each State to the judicial 
proceedings of other States.'^ 

V. The Right to Commerce or Intercourse 



148. The Right to Commerce or Intercourse. — The fifth essen- 
tial right and duty of States is that of mutual commerce or inter- 
course. These result from the interdependence and solidarity 
of the inteUectual, social, and economic interests of modem 
p>eoples ; and include various forms of modem intercourse, more 
especially diplomatic and commercial relations.'' It is perhaps 
rather a necessary condition for modem progress and development 
than a right in liie legal sense of this term,*^ but it is at least an 
open question whether the violation of the most rudimentary of 
these rights is not a serious violation of the Law of Nations. For 
example, a breach of diplomatic intercourse is apt to be followed 
by war, and a total prohibition of the imports of a particular 
nation would certainly be regarded as an unfriendly act. To be 

should consult : * i Calvo, H 231-259 ; Dc Cussy, liv. I, tit. II, S§ 61-63, «i<J I»v. 
II, ch. 19, K 1-6; Davis (3d ed.), 128-131 ; Despagnet, No. 171 ; ♦ i Halleck, ch. 
5, U 16-28; HeflFtcr, § 197; Kltiber, }§ 117-122; G. F. dc Martens, H 158-159; 
♦ I Ortolan, liv. II, ch. 15 ; ♦ 2 Phillimore; Pt. V, ch. 5 ; i Pomeroy, ch. 8, H 255- 
257 ; ♦ 2 P.-Fod6r6, Nos. 549-594; the U. S. Army Regulations of 1895, the U. S. 
Navy Regulations of 1896, and the Queen's Regulations and Admiralty Instruc- 
tions of 1879. 

" The question has been much debated, apropos of the Zappa Ajfair (which led 
to a breach of diplomatic relations between Greece and Roumania in 1892) whether 
one State may inherit real property in another State which prohibits the acquisi- 
tion of such property by foreigners. For bibliography of the Zappa Ajfair, see 
Bonfils (Fauchille), p. 157 of the 5th ed. 

** It would also seem to include the innocent use of postal and telegraphic facili- 
ties, and a right to the innocent use of rivers, etc., for purposes of trade and travel. 

** In one sense the right of intercourse is certainly a legal right, « .f . as against 
third Powers. No State has the right to interfere in the commerce between two 
SUtes. 



ESSENTIAL RIGHTS AND DUTIES OF STATES 159 

sure, a State might conceivably refuse all diplomatic and com- 
mercial intercourse with the outside world, but by such action it 
would cease to be a member of the family of nations. A member 
of the international commimity may use its taxing power to 
levy custom dues which are practically prohibitory; it may 
favor one State and discriminate against another by means of 
treaties of commerce and navigation ; it may refuse to all foreign- 
ers or those of a particular nationality the rights of trade and 
settlement ; it may close certain of its ports to foreign commerce 
or prohibit foreign trade in certain articles. But it may not re- 
fuse all trade with foreign nations or with a particular people ; 
it may not refuse the protection of its courts to foreigners whom 
it admits within its territory ; it accords a certain measure of 
protection to its own nationals on foreign soil; and it must 
permit the passage of foreign merchantmen through its mari- 
time belt and international passageways, as also the innocent use 
of its territorial waters, at least by coriparian States. 

It will thus be seen that the right of mutual conmierce or 
intercourse is far from absolute. It is limited by other essential 
and fundamental rights which take precedence or restrict its 
application. 

VI. The Right of Jurisdiction 

149. The Right of Jurisdictioii. — One of the essential or 
fundamental rights of a State flowing from territorial sovereignty 
is that of jurisdiction over practically all things and persons on its 
territory.*^ By virtue of its personal supremacy or sovereignty, 
it may, in addition, exercise a limited jurisdiction over its na- 
tionals traveling or residing in foreign lands, who are thus 
subject to a double or concurrent jurisdiction. Some States 
even wrongly claim the right to pimish aliens for certain crimes 
committed abroad.** A State also has jurisdiction over all its 
vessejis (including all persons and things thereon) on the high 

*> For exceptions to this rule, see infraf S§ 166, 209, 211, 270 fif., 287 fif. 

** The daim of many States to jurisdiction over aliens for certain crimes com- 
mitted in foreign countries cannot be too strongly condemned, for it is a dangerous 
abuse of power and cannot be justified on any theory. It is contrary to the princi- 
ple of territorial sovereignty as well as that of personal supremacy. In the famous 
CuUing Case in 1866^ the United States refused to admit the validity of the Mexican 



i6o ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

seas, and any State may punish piracy. Finally, in time of 
war, belligerent States or conmiimities may exercise the rights 
of visit and search, capture and confiscate contraband goods, 
and institute and enforce blockades, etc. These matters will 
be considered more in detail in subsequent chapters. 

BIBUOGRAFHT 

The Fundamental Rights and Duties of States. — Bluntschli, Arts. 
64-1)4, 375-393; *Bonfils (Fauchille), Nos. 235-323; Bry, Nos. 73-94*. 
Bulmerincq, in i Marquardsen, §§ 21-26; i and 3 Calvo, §§ 107-109, 
208-359, 1300-1309; I Chretien, Nos. 160-302; Despagnet, Nos.^ 165-186; 
I Fiore, Nos. 160-302 ; Fontenay, Des droits et des devoirs des Etats entre 
eux (1888); Hall (5th ed.), 43-59, 210-213, 247 fif., 268-283; * i Halleck 
(Baker's 3d ed.), 93 ff., 1 16-142, 186 ff.; HeflFter (Geffcken), §§26-39; 
Heilbom, System^ etc., 279-306 (for criticism) ; * HoItzendor£F, in 2 Hand- 
buck J 47-69; *Kltiber, §§ 36-122; Gareis, §§ 24-28; Lawrence, Prin- 
ciplesy Pt. II, ch. 4 ; Ibid., Essays, 208-233 ; Liszt, §§ 7-8 ; i F. de Martens, 
§§ 72-79; I M6rignhac, 233-284, 310-320; 2 N)rs, 176-228; Neumann, 
ElhnerUs, etc., § 8 ; * i Oppenheim, §§112-147 ; i and 2 Phillimore, Pt. Ill, 
chs. 2, 10, 17, and Pt V, chs. 1-3, 5 ; i Pi^delidvre, liv. I, ch. 3, Nos. 201- 
372 ; * Pillet, msR'D, /. P. (1898), 66 fif., 236 flF., and 6 Ibid. (1899), 503 flF. ; 
Pomeroy, §§ 76-124, 204-214; i and 2 Punder-Fod6r6, Nos. 164-195,211- 
332, 442-594 ; I Rivier, §§ 9, 19-30 ; Snow, § 7 ; Ullmann (2d ed.), §§ 36-38 ; 
* Vattel, Prelim., §§ 13-25 ; liv. I, §§ 13-25, and liv. II, §§ 1-137 ; i West- 
lake, 236 ff., 293-304; Ibid.; Chapters, 89-109; Wheaton, §§ 60-62, 77, 
152-160; WUson, ch. 2. 

For references on Intervention, see supra, p. 154 n. 

law under which an American citizen was convicted for a libel on a Mexican pub- 
lished in Texas. 

On this case and subject, see Gamboa, in 22 R. D. I. (1890), 234-250; Hall 
(6th ed.), 207-210; Lawrence, Principles (4th ed.), § 104; 2 Moore, §§ 200-202 
(including Moore's admirable Report on the Cutting Case) ; Rolin, in 20 R. D. I., 
557-577; Snow, Cases, 172-174; Taylor, §§ 191-194; Wheaton, § 113; x West- 
lake, 251-253. 



CHAPTER X 

RSSPONSmiLITT OF STATBS 



1 50. Intematioiial Delinquencies. — For a failure to observe its 
international obligations, as also for a positive violation of the 
rights of other members of the international community, a State 
is internationally responsible.^ Such act of conunission or 
omission may be called an International Delinquency.' 

A State is directly responsible for its own actions or for acts of 
its officials^ and agents performed at its command or acting 
imder its authority.^ State acts which violate International Law 

^ Some publicists of the positive or historical school still teach the false and 
dangerous doctrine that a State is the sole judge of its international responsibilities. 
But the fact that a State is sovereign or that there is no general or permanent 
International Court of Justice ready to pronounce sentence for an infraction of the 
Law of Nations does not free a State from international responsibility or make it 
the sole judge of its international actions. 

* "International Delinquencies" should be distinguished from "Crimes against 
the Law of Nations" and "International Crimes." "Crimes against the Law of 
Nations" are such acts against foreign States as are pronounced criminal by Mu- 
nicipal Law. The phrase "International Crimes" refers to such outrages against 
mankind as piracy and slave trading, which every State has the right to punish. 
See I Oppenheim, f 151. 

International delinquencies should also be distinguished from unfriendly or 
merely discourteous acts. 

' This responsibility is to States rather than to individuals. In International 
Law, the individual as such has neither rights nor obligations other than those 
belonging to him as a citizen or subject of a member of the Family of Nations. 

On the " Theory of International Responsibility of States for Injuries Suffered by 
Foreigners," see especially two- articles by M. Ansilotti, in 13 R.D,J.P. (1906), 
S-29 and 285-309. 

* This principle applies particularly to diplomatic and administrative officials 
and military and naval commanders. It does not fully apply to judicial function- 
aries, for these are more or less independent of the executive in all well-regulated 
modem States. "All therefore that can be expected of a government in the case 
of wrongs inflicted by the courts is that compensation shall be made, and if the wrong 
has been caused by an imperiection in the law of such kind as to prevent a foreigner 
from getting equal justice with a native of the country, that a recurrence of the 
wrong shall be prevented by legislation." Hall (6th ed.), 215. 

M z6z 



i62 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

or inflict injuries upon other nations constitute serious interna- 
tional delinquencies, if committed wilfully or as a consequence of 
culpable negligence. Such acts should be promptly disavowed, 
an apology tendered, and their authors punished. 

151. Direct versus Indirect Responsibility. — In ordinary 
times a State is also indirectly responsible for the orderly and law- 
abiding conduct of all those residing or domiciled (including 
foreigners) within its jurisdiction and subject to its laws. It 
is bound to use due {Le, reasonable) diligence or the means at 
its disposal to prevent injurious acts against other States on the 
part of its own nationals or of foreigners residing on its territory. 
For an international delinquency of this sort, due satisfaction 
and reparation should also be made. But the punishment of 
the offenders or payment of an indemnity to those injured is 
usually deemed a sufficient satisfaction in these cases. 

In case of inability to agree upon proper terms of settlement, 
the dispute should be referred to a board or court of arbitration. 
If arbitration be refused or satisfaction denied, recourse may be 
had to one of the means of self-help described in a subsequent 
chapter.* 

152. General Principle of Responsibility for Injuries to For- 
eigners. — The general principle governing the responsibility 
of States for acts injurious to foreigners within its own jurisdic- 
tion is that a State is bound to furnish the same degree and kind 
of protection to foreigners and provide the same means of redress 
or measure of justice that it grants to its own nationals ; but that 
ordinarily {i,e, in the absence of special privileges conferred by 
treaty or municipal law) foreigners are not entitled to a greater 
degree of protection or better guarantees of justice than are 
afforded to a State's own citizens or subjects.* 

A State is not responsible for the utterances of members of Parliament or legis- 
lative and representative bodies. 

• See infra, ch. 22. 

*This principle, although it is not wholly without exceptions, is generally 
admitted to be an undoubted rule of International Law. Upon it is based the famous 
Calvo Doctrine, which condemns intervention (diplomatic as well as armed) as a 
legitimate method of enforcing any or all private claims of a pecuniary nature, at 
least such as are based upon contract or are the result of civil war, insurrection, or 
mob violence. "To admit in such cases the responsibility of governments, i.e. 
the principle of indemnity, would be to create an exhorbitant and fatal privilege 
essentially favorable to powerful States and injurious to weaker nations, and to 



RESPONSIBILITY OF STATES 163 

153. The Rules governiiig the Responsibility of States in 
Respect to Foreigners. — In attempting to secure redress or 
justice, foreigners must, in the first instance, have recourse to the 
local or territorial tribunals of the district in which they are 
domiciled, or, as Vattel put it,^ to the " judge of the place." 
Judicial remedies should, as a rule, be exhausted before resort- 
ing to diplomatic interposition as a means of obtaining redress.^ 
But this rule does not apply in cases of gross perversion or 
evident denial of justice, where judicial action is waived, where 
the acts complained of are in themselves violations of treaty or 
of International Law, or where there is undue discrimination 
against foreigners on the part of the authorities.* It '^ does 
not apply to countries of imperfect civilization, or to cases in 
which prior proceedings show gross perversions of justice." ^ 

The question of the liability of a State for injuries to the per- 
sons and property of foreigners resulting from mob violence is 
one in wliich the people of the United States should be deeply 
interested. Whether due to the intensity of feeling engendered 
by race and labor problems or (as is more likely) to a lax enforce- 
ment of the law resulting from cumbrous and antiquated legal 
methods of trial and procedure, the American custom of Ijmch- 
ing shows little sign of abatement and is not likely to disappear 
imtil the causes which lead to it are removed. 

154. The Practice of the United States. — The rule which has 
generally been verbally maintained by American statesmen 



establish an unjustifiable inequality between nationals and foreigners." 3 Calvo, 
{ 1280. Cf. i,if and 6 Calvo, §S 205, 1271-1297, and i 256 of Vol. 6. 

This doctrine is undoubtedly sound in principle, but subject to certain exceptions. 
It has been incorporated, though in too absolute a form, into some of the consti- 
tutions and into many treaties by Latin-American States. 

The broader Calw Doctrine should be distinguished fiom the narrower Drago 
Doctrine which merely forbids the forcible collection of public debts — a doctrine 
equally sound in principle and wise as policy, but which its author, the eminent 
Argentine statesman, Sefior Drago, supported by the erroneous and in part obso- 
lete contention that '* it is an inherent qualification of all sovereignty that no pro- 
ceedings for the execution of a judgment may be instituted or carried out against it." 

For references on the Calw and Drago DoctrineSf see infra^ p. 331. 

^ liv. II, ch. 8, S 103. C/. ch. 6, K 72 and 73. 

* 6 Moore, Digest, S 987. Cf. 2 Wharton, i 241. 

* For examples of such exceptions, see 6 Moore, Sf 913-^14, 986-^3, 102 1 ; and 
^ Wharton, {$ 230 and 242. 

^ Secretary Evarts in 2 WBarton, Digest, p. 695. 



i64 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

appears to have been first laid down by Daniel Webster upon the 
occasion of the riots at New Orleans and Key West in 1851, 
which resulted in the summary execution of a number of Ameri- 
can filibusters in Cuba. While admitting that the Spanish con- 
sul (whose office had been attacked and furniture destroyed) ^ 
was entitled to indemnity, he maintained that those Spanish sub- 
jects who had been injured in person or property were not entitled 
to compensation, on the ground that many American citizens 
suffered equal losses from the same cause and foreigners are 
merely " entitled to such protection^* as is afforded our own citi- 
zens." As a mark of courtesy and out of respect to the magna- 
nimity of the Queen of Spain (in liberating American prisoners), 
Congress nevertheless granted compensation to Spanish subjects 
as well as to the Spanish consul for losses sustained during these 
riots. 

History has repeated itself in respect to a number of claims 
made by foreigners for injuries ]::^sulting from mob violence in the 
United States from that day to this. In the majority of these 
cases, our Government has refused to admit liability in principle, 
but has granted compensation as a matter of grace or favor, or 
from a sense of sympathy, benevolence, or policy." Some of 
our statesmen, however, admit liability in case of a failure on 
the part of the local authorities to use due {i.e. reasonable) 
diligence in preventing or punishing such crimes, and this is 
unquestionably the rule of International Law." 

On the other hand the United States has shown commendable 

" The archives of the consulate had been thrown into the street, the portrait 
of the Queen of Spain defaced, and the Spanish flag torn to pieces. 

^ 2 Wharton's Digest, § 226, p. 601. Cf. Moore, i 1023, pp. 812-813. See also 
Snow, CaseSy 181-183. 

^ This was notably so in the cases of the 43 Chinese killed and wounded at 
Rock Springs, Wyoming, in 1885 ; and of the Italians lynched at New Orleans in 
1891. For these and numerous cases, see 6 Moore, ( 1026. 

^^This rule is usually stated in language ascribed to Secretary Evarts: "A 
government is liable internationally for damages done to alien residents by a mob 
which by due diligence it could have repressed." See 2 Wharton's Digest , p. 602. 
But the absence of quotation marks in Wharton and a reference to Evarts's dis- 
patch as given in 6 Moore's Digest (pp. 817-818) shows that Mr. Evarts did not 
use the language which has been ascribed to him. It is, however, a good state- 
ment of an undoubted principle of the Law of Nations if we add the words — "and 
which it fails to punish." The fact that our Federal Government has sometimes 
been unable to secure justice for foreigners by reason of constitutional or statutory 
limitations does not free it from international responsibility in such cases. 



RESPONSIBILITY OF STATES 165 

zeal in protecting its citizens from such attacks abroad. It has 
repeatedly interposed diplomatically in behalf of its citizens in 
China, Turkey, Mexico, Panama, Chile, Brazil, and other Cen- 
tral and South American States.^^ 

In view of this double inconsistency — that of the6ry and 
practice on the one hand, and our attitude at home and abroad 
on the other — it is highly desirable that our State Department 
should in the future frankly admit liability in all cases of attack 
by mobs upon foreigners as such or upon those of a particular 
nationality whenever the local authorities show themselves un- 
willing or unable to use reasonable diligence to prevent, and 
whenever the courts are unable or unwilling to pimish, such 
crimes. For foreigners have an undoubted right to demand 
better protection against this species of violence than is afforded 
by our courts and local authorities in some parts of this country. 

But it may be urged that the admission of such a principle might, 
in some cases, give to foreignexs a protection superior to that 
enjoyed by our own citizens. This may be true in countries 
like our own where life and property are insecure from mob vio- 
lence and where criminal procedure is notoriously defective ; but 
civilized States are supposed to grant at least a fair or average de- 
gree of such protection in ordinary times, and it is no adequate 
reply to a charge of denial of justice to," or an undue discrimina- 
tion against, foreigners to urge that our own citizens frequently 
suffer similar or even greater injustice. There would, of course, 
be no responsibility in the case of an ordinary miscarriage of jus- 
tice, where the spirit as well as the forms of the law had been 
complied with, or in the case of one accidentally killed or injured 
in the course of a riot or insurrection.*^ 

In view of the protest by Japan in 1906 against the segrega- 
tion of Japanese school children in San Francisco," it should be 

^* 6 Moore, op. cU, For our diplomatic activity in China, see the extremely 
able communication of the Chinese minister Cheng Tsao Ju to Secretary Bayard 
on pp. 822-826. 

'* On what constitutes a denial of justice, see especially AnzOotti, op, cil., pp. 21- 
33 ; 6 Moore, §S 913 and 986 ; 2 Wharton, § 230 ; and Vattel, liv. I, ch. 18, § 350. 

" See, e.g, the case of Bain, in 6 Moore, § 1027. 

^* On the Japanese School Question ,' see especially Barthelemy, in 14 R, D, I. P. 
(1907); Ckronique, 636 ff.; Baldwin, in 7 Columbia Law Review (1907), 85 £[.; Her- 
ahey, in Am. Pol, Set. Rev, (1907), 393 ff.; and Secretary Root, in i i4. /. (1907), 
273 ff. 



i66 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

noted that a State is under no obligation to extend to foreigners 
the enjoyment of civil and private rights or to place them upon 
an equal footing with its own nationals' in these respects. What- 
ever rights or privileges of this kind (whether of an educational, 
economic, or religious nature) foreigners may enjoy are based 
upon convention or the principle of reciprocity, or are granted 
as a matter of grace and favor.^' All that an alien who is per- 
mitted to set foot on foreign territory (and this permission is 
purely optional) can demand as a matter of strict right in the 
absence of privileges granted by treaty, is protection of life and 
property together with access to the local coiu'ts for this purpose. 
155. Responsibility for Injuries to Foreigners during Civil 
War and Insurrection. — The same principles may, in general, 
be said to apply to cases of injuries or losses sustained by for- 
eigners during civil war and insurrection ; but the law of necessity 
or the physical inability {farce majeure) to furnish adequate pro- 
tection under such circumstances usually absolves governments 
from responsibility in these cases. The general rule is that " a 
sovereign is not ordinarily responsible to alien residents for inju- 
ries they receive on his territory from belligerent action, or from 
insurgents whom he could not control." They are " not entitled 
to greater privileges or immunities than the other inhabitants 
of the insurrectionary district. ... By voluntarily remaining in 
a country in a state of civil war they must be held to have been 
willing to accept the risks as well as the advantages of that 
domicile." * 

This dispute was primarily a question of treaty construction and constitutional 
law (the extent of the treaty-making power in the United States) ; but it was con- 
tended that the right of education was included under the right of residence granted 
by the treaty of 1894 on reciprocal terms, and this may be considered a question 
of International Law as well as treaty construction. There seems to have been 
no warrant for this contention. 

In the paper cited above, Secretary Root maintained that under the treaty, 
the State of California might decline to furnish all aliens with school privil^es, 
but could not discriminate against those of a particular nationality in the use of 
her public school system. There appears to be no other authority for this view, 
whether regarded as a principle of treaty construction or a rule of the Law of 
Nations. The theory of "undue discrimination" has been applied to the responsi- 
bility of a State for the protection of foreigners, but I am not aware that it has been 
extended beyond this duty. There is much, however, which might be said in its 
favor. 

^* On this head see especially Anzilotti, 13 R. D. I. P, (1906), 18-20. 

"° 2 Wharton's Digest , § 223, pp. 577-578. C/. 6 Moore, f 1032, p. 885. 



RESPONSIBILITY OF STATES 167 

These principles have been repeatedly enunciated by our lead- 
ing statesmen,'^ as also by^ those of Europe," and they have the 
almost unanimous sanctionx>f leading authorities on International 
Law. Almost invariably they have been applied by European 
States in their relations with each other, though frequently 
ignored in their dealings with weaker States, more particularly 
in the cases of China, Turkey, and the Republics of Latin America 

156. Exceptions to General Princiides. — There are, how« 
ever, several exceptions which must be made to the general prin- 
ciples laid down in this chapter. Indemnity would seem to be 
due to foreigners by way of exception in the following cases: 
(i) Where the act complained of is directed against them because 
they are foreigners, or as belonging to some particular national- 
ity. (2) Where the injury results from an act contrary to the 
laws or treaties of the country in which the act is committed, and 
for which no redress can otherwise be obtained. (3) When there 
has been a serious violation of International LaW; more especially 
of the rules of civilized warfare. (4) In cases of a gross violation 
or an evident denial of justice, or of undue discrimination against 
foreigners on the part of the authorities." 

157. Claims based on Contract. — There is another class of 
claims, viz. those based upon contract, which have given rise to 
much controversy. These consist mainly of loans and invest- 
ments which have been guaranteed by a defaulting government. 
The question is here not so much one of responsibility (for the 
responsibility of a State is conceded in these cases) as of the means 
by which such claims may be enforced. Though the authorities 
who discuss this question are divided in their opinions, the 
majority of them appear to be opposed to their forcible collection, 
except possibly as a last resort.^* 

'^ For numerous opinions of American statesmen, see 6 Moore, §§ 103 2-1049. 
Cf. 2 Wharton, §§ 223-226. 

• " See especially the notes of Prince Schwartzenburg (Austrian) and Count 
Nesselrode (Russian) in reply to certain claims of the British Government which 
were based upon injuries to British subjects during the revolutions in Tuscany and 
Naples, in 1848. Cited by i P.-Fod6r6, § 205, pp. 343-345» and 6 Moore, pp. 886- 
887. 

** See especially 6 Moore's Digest^ §§ 912 f!., 986 ff., loio fit., 1019 fit., 1022 fit., 
X032 ff.f 1040, and 1044 fit. ; and the rules adopted by the Institute of International 
Law (1900), in 18 Annuaire, 254-256. Cf. 6 Moore, pp. 953-954; Mid P.-Fodere 
§ 1366, p. 237. 

^ The right of a State to use coercive measures in the collection of public debts 



l68 ESSENTIALS QF INTERNATIONAL PUBLIC LAW 

It is argued, on the one hand, that the public faith — the so- 
called " honor of the prince " — is particularly engaged in case 
of contracts of this nature, inasmuch as a government cannot 
be sued without its own consent; that creditors may have no 
other means of redress than that of appealing to the State to 
which they owe allegiance ; that stock in the public debt even if 
held by an enemy is exempt from seizure and its interest payable 
even in time of war ; and that States, being in legal theory free 
and independent and owning no common superior, each State 
may enforce its rights at its own discretion by any means whatso- 
ever. 

On the other hand, it is urged that hazardous loans and invest- 
ments should be discouraged; that those making them usually 
do so with a full knowledge of the risks incurred and in the 
expectation of exceptionally large returns; that the natural 
penalty of a failure on the part of a State to fulfill its obligations 
is a loss of credit ; that foreigners cannot hope to be preferred to 
native creditors ; that coercive measures for the collection of bad 
debts are never or seldom employed except against weak States 
and are likely to be employed as a pretext for aggression or con- 
quest ; and that " it is an inherent qualification of all sovereignty 
that no proceedings for the execution of a judgment may be insti- 
tuted or carried out against it.^ 

is asserted, e.g. by Hall (6th ed.), 376; i Halleck (3d ed.), 105 fif. ; 2 PhOlimore, 
Pt. V, ch. 3 ; I Rivier, 272-273. 

The right is denied with or without reserves by i Calvo, { 205; Despagnet, 
No. 208 bis of 4th ed. ; Kebedgy, in i R. D. I. P. (1S94), 261 ; F. de Martens, in 
19 R. D. I.f 386; Moulin, La doctrine de DragOj 99-129; 2 'Sys, 225; Politis, 
Les emprtmts d'Elat, 217 ff. ; i P.-Fod6r6, No. 405 ; Rolin-Jaequemyns, in i ^. Z>. /. 
(1869), 145 ff.; and i Westlake, 317-320. 

For the opinions of ten leading publicists on this question, see 35 R. D. I. (1903), 
S97-<523. 

** Seftor Drago in the note referred to above, p. 163 n. But thb argument is based 
upon an erroneous and partly obsolete view of the nature of sovereignty. 

The views of British and American statesmen are not in complete harmony 
upon this subject, although the general policy of Great Britain and the United ' 
States had been substantially the same, except for the British interventions in 
Mexico, Egypt, and Venezuela, and those of the United States in San Domingo 
and Central America. 

The English view, as stated by Lord Palmerston in 1848 and reaffirmed by Lord 
Salisbury in 1882 and by Premier Balfour in 1902, is that financial intervention, 
though legally permissible, is inexpedient. It is a question of policy rather than 
of law. For the text of Lord Palmerston 's circular, see Hidl (6th ed.), 276- 
377 n.; and 2 Phillimore, Pt. V, ch. 3. 



RESPONSIBIUTY OF STATES 169 

In 1907 the Second Hague Peace Conference laid down a princi- 
ple which, although not agreed to by all the States represented 
there, may be regarded as the present rule of International Law 
on this subject. The Contracting Powers agreed not to have 
recourse to armed force for the recovery of contract debts unless 
in case of a refusal to arbitrate or failure to submit to the arbitral 
award after arbitration had been agreed upon.^ 

BIBUOGRAFHT 

ResponsibiUty of States. —* Anzilotti, in 13 R. D. I, P. (1906), 5-29 
and 285-309 ;* Bar, in 31 R. D. /. (1899), 464 ff.; Baty, Int, Law, chs. 
4-S (for examples of claims by Great Britain); Bluntschli, Arts. 375- 
393 ; * Bonfils (Fa!Uchille), Nos. 324-332,433-440; Brewer and Butler, in 
22 Cyc, of Law and Procedure (1906), 1734 flF. (Art. on Int. Law) ; * Brusa, in 
17 Annuaire de VlnstUiU (1898), 96 ff. ; *3 Calvo, §§ 1 261-1298; Clunet, 
Offenses etfaites hosiUes comtnis par particuliers contre un ekU ekanger (1887) ; 
I Fiore, Nos. 659-679; Funck-Brentano ct Sorel, Pricis, ch. 12; •Hall 
(5th ed.), 53, 217-213, 323; I Halleck (Baker's 3d ed.), 440-444; HeflFter 
(Geffcken), §§ 101-104; * Hershey, in i A, J. (1907), 26-45 J Holtzendorff^ 
in 2 Handbuchf 70-74; Liszt (3d ed.), § 24; * Moulin, Le doctrine Drago 
(1908) ; * 6 Moore, ch. 21 (for claims by the United States) ; 2 Nys, 226- 
228; I Oppenheim, Pt. I, ch. 3 ; i Pi6delidvre, 317-322 ; Pittard, La pro- 
tection desnationaux d Vetranger (1896) ; * i and 3 P.-Fod6r6, Nos. 196-210, 
402 flF., 1363 ff. ; I and 2 Rivier, 271-273 and 40-44, respectively ; * Rougier, 

In habitually refraining from diplomatic as well as forcible intervention to 
secure the payment of public and contract debts, the United States appears to 
have been influenced by respect for what it believes to be a principle of the Law 
of Nations as well as by poUcy or expediency. For the views of American states- 
men, see 6 Moore, §§ 916, 995-998. Cf. 2 Wharton, §§ 231-232. 

But exceptions have been made in cases where diplomacy furnished the only 
means of redress, as in case of the non-performance of a government contract, 
arbitrary confiscation of vested rights, or of annulment of charters or concessions. 
For examples, see 6 Moore, §§ 918, 996-997, and 2 Wharton, § 232. 

"International commissions have frequently allowed claims based on the in- 
fraction of rights derived from contracts where the denial of justice was properly 
established." 6 Moore, p. 718. 

In his Message of Dec. 4, 1906, President Roosevelt admitted that "the non- 
payment of public debts may be accompanied by such circumstances of fraud and 
wrongdoing or violation of treaties as to justify the use of force." See Hershey, 
"The Calvo and Drago Doctrines," in i i4. /. (1908), p. 40, from which article the 
major portion of this chapter has been drawn. 

** For the text of Art. I of this Convention, see i»/ra, § 313. 

The term "contract" debt, as used in the Convention, almost certainly includes 
public loans. For an admirable discussion of thb convention, see Moulin, La 
Doctrine de Drago , 305-346. See 3 A, /., 772-776 for a review of this excellent 
woA. 



lyo ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

Les guenei cinUs (1903), 448^478; * Triepel, Vdlkerreckt u. Landesrecki, 139 
324-381 ; Tchemoff, Le draii de proUclion (1898), especially liv. Ill, ch. 4; 
UUmann (2d ed.), § 39; Vattd, liv. U. §§ 63-78; Wiesse, Le droit int. 
appliqtU aux guerres civiUs, § 14, pp. 43~'55 ; i Westlake, ch. 14 ; Wheaton, 
§ 32 ; 3 Wharton, Digest, ch. 9, §§ 223 ff. 



PART n 

THE OBJECTS OF INTERNATIONAL LAW 

158. Introductory. — The objects of the Law of Nations are : 
(i) material goods or things; and (2) individuals or persons 
(including corporations). 

The main things to which the rules of International Law apply 
are land territory, territorial waters, the open sea, atrial space, 
public vessels (mainly warships) , private vessels (mainly merchant- 
men), and other public and private property of various sorts. 

In the following chapters we shall first consider the various 
forms of a State's territory, and the modes of acquisition. This 
will be followed by chapters on atrial space and the open sea (in- 
cluding the non-territorial or property rights of States, more 
especially the jurisdiction over warships and merchant vessels in 
times of peace). Finally, we shall consider the rights and 
duties of individuals as objects of International Law during 
peace. 



171 



CHAPTER XI 

A STATE'S TERRITORY AND ITS BOUNDARIES 

159. The Nature of Territorial Sovereignty. — A State's 
territory is that definite portion of the earth's surface which is 
subject to its sovereignty or imperium. According to the old 
maxim, Quidquid est in territoriOy est etiam de territario} This 
territorial supremacy should be distinguished from the non-ter- 
ritorial or property rights which a State enjoys over its public 
and private domain.* Nor should it be confused with the right 
of eminent domain by virtue of which a State may expropriate 
private property for public purposes, though it should be noted 
that this right of eminent domain ' is essentially an exercise of 
territorial sovereignty, and may be exercised for international 
as well as national purposes. 

The jurisdiction of a State extends, with certain exceptions 
to be noted hereafter,* over all persons and things found on its 
territory, and may also be employed for international as well as 
national purposes. Territorial sovereignty is of the nature of 
imperium rather than dominium,^ i,e. it is an imperial rather 

^ Or in resp>ect to persons, qui in terriiorio meo est, etiam mens suhditus est. 

* See supra f §§ 129-130. 

'On the right of Eminent Domain, see especially: Beach, Public Corporations 
in the United States (1893), §§ 653-688; Cooley, Constitutional Limitations (7th 
cd.)i 753 ; IS Cyclopedia of Law and Procedure, 543-1029 ; * Elliot, Municipal Cor- 
porations (1910, 2nd ed.), ch. 10, §§ 83-98; Encyclopedia of Law (2nd ed.), i<H3- 
1205; Lewis, The Law of Eminent Domain (3d ed., 1909); Mills, The Law of 
Eminent Domain (2d ed., 1888); Nichols, The Power of Eminent Domain (1909); 
Randolph, The Law of Eminent Domain. , 

* See infra, §§ 209, 211, 270 ff., 289-291. 

* The saying of the great French jurist Portalis is frequently cited in this con- 
nection: "Property belongs to the citizen, empire to the sovereign." . 

Some publicists still speak of territorial sovereignty as a property right. This 
is doubtless a mediaeval survival of the terminology introduced into public law 
by the feudal confusion of rights based upon the exercise of sovereignty and those 
derived from the ownership of land. 

172 



A STATE'S TERRITORY AND ITS BOUNDARIES 173 

than a property right. With certain exceptions,^ this imperium 
or territorial supremacy is exclusive in character, and cannot 
be exercised by more than one sovereign State over a given terri- 
tory. 

160. Extent of a State's Territory. — The territory of a 
State consists of land, water, and air. It may be thus classified : 
(i) The Land Domain. (2) The Maritime and Fluvial Domain 
or Territorial Waters, using the latter phrase in a general sense. 
(3) Aerial Space. 

161. The Land Domain. — The Land Domain consists of all 
the land (including colonies and dependencies)^ to which the 
State has a valid title. Especially important are such means of 
communication as the public highways, telegraph lines, etc., 
which are subject to public control. 

The Land Domain of a State also includes all islands formed 
within its territorial waters,^ and the territorial subsoil beneath 
its land and water surface. This jurisdiction over the subsoil, 
which extends to an indefinite depth, arises from the necessity — 
a need increasingly felt — of conserving for future generations 
the rich treasures found beneath the earth's surface. In certain 
cases, international regulation may be deemed desirable.* 

162. Boundaries or Frontiers of a State. — The frontiers or 
boundaries of a State are usually classed as natural or physical, 
and artificial or conventional. To avoid international conflicts 
and controversies, it is very important that they be accurately 
drawn and definitely ascertained. 

' See I Oppenheim, § 171, for these exceptions. 

^ It does not, strictly speaking, include a Vassal State under Suzerainty or 
a Protectorate. But inasmuch as the Suzerain or Protector frequently exercises ^ 
jurisdiction within the Vassal or Protected State, no general rule can be laid down J 
in respect to such territory. It certainly does not include the Rack Country j 
{Hinterland) f spheres of interest, and the like. It probably includes leased terri- { 
tory. ^ 

' In the case of the Anna (1805), 5 C. Rob. 373, Sir Wm. Scott held that a chain 
of uninhabited mud islands situated at a distance of a mile and a half from the 
western shore of the principal entrance of the Mississippi River formed natural 
appendages to the coast, and that the extent of territory or marine league should 
be measured from these islands. For the case of the Anna in abridged form, see 
I Moore, Digest, § 82, pp. 269-270, and Scott, Cases, 684-687. For comments, 
see Lawrence (3d ed.), § 91, p. 142; i Oppenheim, § 234, and i Westlake, 118. 

' On the importance of the subsoil and the different systems of mine exploitation, 
see I Nys, 411-412. 



174 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

163. Natural Boundaries. — Natural Boundaries ^ have been 
formed, for the most part, by moimtains, forests, deserts, valleys^ 
steppes or plateaus, marshes, the open sea, rivers, and other 
territorial waters. They rest upon prescription or immemorial 
custom, or are more definitely defined by conventions. 

164. Artificial Boundaries. — Artificial boimdaries are neces- 
sarily fixed by treaties and usually follow imaginary astronomical 
or mathematical lines based on latitude or longitude. They are 
often marked by various signs or landmarks, such as stones, 
posts, walls, trenches, roads, canals, buoys, etc. 

165. Rules for Fixing Natural Boundaries. — In the absence 
of treaties, the following rules regulating natural boimdaries 
are laid down by the customary Law of Nations : — 

(i) In case of a navigable river, the boundary line follows the 
middle of the so-called thalweg (down way)," i.e. the strongest 
current of the midchannel or navigable portion of the stream." 
If the river be not navigable, the line runs down the middle 
of the stream.^ 

^° Natural boundaries have played a very important r61e in the history of inter- 
national relations (witness, e.g. the repeated attempts of the French to establish 
the Rhine, Rhone, and the Pyrenees as the natural boundaries of France) ; but, 
owing to ever increasing facilities for interstate communication by artificial means, 
the subject is one of ever decreasing importance. A consideration of the value 
of natural frontiers would be beyond the scope of a work on International Law, 
which merely prescribes the rules to be followed in the absence of boundary treaties 
or conventions. For references on BoundarieSy see Bibliography at the end of this 
chapter. 

^' For the etymological meaning of this word, see i Westlake, 141 n. 

" As the result of convention or prescription, it is sometimes the case that the 
whole bed of the stream belongs to one of the co-riparian States. This is the case 
with the Ohio River, no part of which was included in the cession of Virginia to the 
United States (in 1871) of " the territory northwest of the river Ohio." In Handles 
Lessee v. Anthony (1820), 5 Wheaton, 374, and Scott, 116, it was held that the State 
of Kentucky extended to low-water mark on the western and northwestern side of 
the Ohio, and that an island or peninsula (whether island or peninsula depending on 
the height of the river) formed by the Ohio and a channel or bayou on the north side 
of the river belongs to the State of Indiana. See also Indiana v. Kentucky (1889), 
136 U. S. 479. 

In BuUentUh v. St. Louis Bridge Co. (1888), 123 Illinois, 535, and Iowa v. IUp- 
nois (1893), 147 U. S. I, the phrase "middle of the Mississippi River" was con- 
strued as meaning the "middle of the main channel" or "thr^ul of the stream." 

Two of the cases cited above may be found in Scott, 1 16-129. See Scott, 78 
and 131, for citations of other leading cases. For a long citation from Iowa v. 
Illinois f see i Moore, Di^est^ 128, pp. 618-619. 

^ This is the earlier rule, but it has the disadvantage of being a shifting line. Yet 



A STATE'S TERRITORY AND ITS BOUNDARIES 175 

(2) ''Where a boundary follows mountains or hills, the 
water divide constitutes the frontier." " This is readily deter- 
mined where there is a range or ridge of mountains with a sharply 
defined crest. But where the mountain barriers consist of '' a 
tumbled mass of peaks and gorges/' ^ the problem becomes 
very dfficult.^* 

(3) When States are separated by lakes or landlocked seas, 
the boundary line follows the middle of such seas or lakes. 
But these are sometimes divided between the bordering States 
by convention.*' 

(4) " In a narrow strait separating the lands of two different 
States, the boundary line runs either through the middle or 
through the midchannel, unless special treaties make different 
arrangements." ** 

Though it is held in the United States that questions of bound- 
ary between independent nations are political in their natiure,^ 

the modem rule of the thalweg is not without similar inoonveniences. It also is 
subject to change, though to a lesser degree. "The law, as stated by law writers 
and in the adjudged cases, seems to be well settled that where a river is declared to 
be the boundary between States, although it may change imperceptibly from natural 
causes, the river as it runs continues to be the boundary. But if the river should 
suddenly change its course or desert the original channel, the rule of Uw is, the bound- 
ary remains in the middle of the deserted river bed.'' This is the identical lan- 
guage of Justices Scott and Smith in BuUenuth v. St. Louis Bridge Co. (1888), 123 
niinois 535, and Cooley v. Golden (1893), 5^ Missouri Appeals 52. See Scott, pp. 
123 and 131. 

See also St. Louis v. RuU (1891), 138 U. S. 226; Nebraska v. Iowa (1892), 143 
U. S. 359, 368; and the opinion of Gushing (1856), 8 0pp. Atty. Gen., 175-176. 
For a summary of Nebraska v. Iowa and citation of cases, see i Moore, Digest, 
§ 82, pp. 271-273. For other cases, see i Moore, § 128. 

^^ Hall (5th ed.), p. 122. Cited by Moore (I, § 127), who adds : ''This rule, while 
simple enough in principle, is often exceedingly difficult of application.'' For 
examples, see his references to Moore's Int. Arbitrations on p. 616 of the Digest. 

On some interesting questions arising out of boundary disputes in South America, 
see also the Chronigue, in 8 R. D. I. P. (1901), 486 Q.; Alvarez, in 10 Ibid. (1903), 
651-^90; and Moulin, in 11 Ibid. (1904), 150 Q. 

^* Curzon, Frontiers (1907), p. 19. In this very remarkable Romanes lecture, 
Lord Curzon calls attention to the " well-known geographical fact that in the gr^t- 
est mountain systems of the world, for instance, the Himalayas and the Andes, the 
water divide is not identical with the highest crest." 

^* It is, of course, possible that a mountain range may belong wholly to one or the 
other of the coterminous States. 

^^ For examples, see i Oppenheim, § 179. The use of the water is, however, com- 
mon to the bordering States. 

'* I Oppenheim, § 199, p. 255. He cites i Twiss, §§ 183-189. 

^* See especially Foster and Elam 75 ; Neilson (1829), 2 Peters 253 and Scott 75; 
U. S. v. Texas (1891), 143 U. S. 621 and Scott 76; and the cases therein cited. 



176 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

boundary disputes are eminently proper subjects for judidal 
determination, and should always be referred to courts of arbi- 
tration or mixed commissions for settlement. 

i60. International Servitudes. — International servitudes are 
perpetual restrictions not involving a loss of sovereignty on the 
territorial or personal sovereignty " of one State in favor of 
another State or of other States. They are based either upon 
express convention or upon a tacit agreement resulting from 
immemorial usage, and are usually divided into two classes — 
positive and negative servitudes. 

167. Positive Servitudes. — Positive servitudes are those 
which grant to a State the right to perform certain acts on the 
territory of another State, such as fishery rights in territorial 
waters, the construction and operation of a railway, the col- 
lection of customs dues, the passage of an army or the garrison- 
ing of a fortress, and the exercise of certain judidal, military, 

But the United States courts do not hesitate to assume jurisdiction over bound- 
ary disputes between States or between a Territory and a State of the Union. 
There is no sound reason why an International Court should not be established for 
the decision of boundary and other disputes of a judicial nature between members of 
the family of nations. 

^ Though International or State Servitudes are usually restrictions on terri- 
torial sovereignty, i.e. servitudes in rem^ the author knows of no good reason why 
the use of the term should be confined to thb class of limitations on sovereignty, as 
many publicists would have it. Th^re may be servitudes in personam as well as 
ser\'itudes in rem^ as far as the Law of Nations is concerned; and the latter class of 
servitudes may be restrictions upon personal as well as territorial sovereignty. 
Undoubtedly the term is often misapplied, e.g. by Hall (p. 159 of 5th ed.) when he 
includes " the right of innocent use of territorial seas " in his list of servitudes. This 
is a general restriction on territorial sovereignty imposed upon all States by Inter- 
national Law. The characteristic mark of an International Servitude is that it is a 
^ perpetual limitation on sovereignty in the interest of some particular State or States. 
But such restrictions are not sufficiently important to involve any actual loss of 
sovereignty, as they do, e.g. in the case of a Protectorate. 

The prevalent conception and theory of International Servitudes as territorial 
in character is denied by the following publicists : Bulmerincq, in i Marquardsen, 
§ 49 ; Gareis, § 71 ; Liszt (3d ed.), pp. 71 and 159 ; Jellinek, AUgemeine StaaisUkre 
(2d ed.), 391-393 ; an<l 2 Nys, 271-279. 

It may be asked in what respects a State Servitude differs from an ordinary in- 
ternational obligation. The answer would appear to be that it creates a more per- 
manent and irrevocable class of obligations. They are not extinguished by ces- 
sion or conquest and continue to be obligatory upon the annexing State. There is a 
difference of opinion as to whether the clause rebus sic stantibus^ supposed to be 
implied in every treaty, is at all applicable to servitudes, which may be considered 
a species of vested rights in favor of another State or other States. It would cer- 
tainly seem that they cannot be revoked except in the most extreme 



A STATE'S TERRITORY AND ITS BOUNDARIES 177 

and police functions on foreign territory. Examples of posi- 
tive servitudes are: the Russian and Japanese railways in 
Manchuria, the collection of customs dues by the United States 
in San Domingo, the exercise of consular rights of jurisdiction 
in the Orient, and the former French fishery rights on the coasts 
of Newfoundland. 

168. Negative Servitudes. — Negative servitudes are those 
which obligate a State to abstain from exercising its territorial 
or personal sovereignty in certain ways, such as a convention 
not to exerdse certain judicial, military, or police functions on 
its own territory; an agreement not to fortify certain places; 
an obligation not to permit certain classes of foreigners to re- 
side on national territory or to abstain from acts of jurisdiction 
over nationals of another State ; and the conditions sometimes 
imposed by treaties of peace requiring a limitation of naval or 
land armaments, etc. Examples of negative servitudes are: 
the agreement of Russia and Japan (see Art. 9 of Treaty of 
Portsmouth in 1905) " not to construct in their respective 
possessions on the island of Sakhalin or the adjacent islands any 
fortifications or other similar military works ; " the promise of 
France to England made several times in the eighteenth cen- 
tury not to fortify Dunkirk (these clauses were abrogated in 
1 783) ; and the obligation imposed by the Powers upon Russia 
at the Congress of Paris in 1856 to demolish all fortresses upon 
the Black Sea and not to maintain a fleet of warships in these 
waters, — an intolerable servitude which Russia did not hesi- 
tate to declare no longer binding upon the outbreak of the 
Franco-German War in 1870. 

BIBUOGRAFHT 

International or State Servitudes. — *^A.J, (1910), 957-^59 (decision 
of Hague Tribunal in U. S, v. Great Britain in case of North Atlantic Coast 
Fisheries ; Baty, Ini, Law in South Africa, 48-49, 74 ff. ; * Bonfils (Fauchille), 
Nos. 338-344; *Bluntschli, Arts. 353-359; Bulmerincq, in i Marquardsen, 
§ 49; Bry, Nos. 113-116; * Clauss, Die Lekre von denStaatsdienstbarkeiten 
(1894) ; 3 Calvo, § 1583 ; Creasy, Nds. 257-261 ; Despagnet, Nos. 190-192 ; 
*Fabre, Des servitudes, etc. (1901); 2 Fiore, Nos. 829-830; Gareis, § 71 ; 
Hall (5th ed.), 159-160 ; Heffter (Geffcken), § 43 ; * Holland, Jurisprudence 
(loth ed.), 214-221 ; Hollatz, Begriff und Wesen der StaatsServituden (no 
date) y 830; Holtzendorff, in 2 Handhuch, 246-252; Kluber, §§ 137-139; 
Labrousse, Des servitudes, etc. (191 1); * Liszt (3d ed.), §§ 8 and 19, pp. 

N 



178 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

71 and 159 ; * F. dc Martens, §§ 93-95 ; G. F. de Martens, { iii ; 2 Meri- 
gphac, 366-368 ; 2 Moore, Digest, § 177 ; Neumann, § 13 ; * 2 Nys, 271-179, 
and Ibid., in 37 R, D. I. (1905), 118 ff. ; * i Oppenheim, §§ 203-208 ; i PhU- 
limore, §§ 280-283 ; i Pi^delievre, Nos. 448-452 ; * 2 P.-Fod6r6, Nos. 834- 
845, 1038; *! Rivier, 73, 258, 296-303; Taylor, § 252; i Twiss, § 245; 

* Ullmann (2nd ed.), 99; i Westiake, 6i ; Wilson and Tucker, §§ 55, 68; 
Wilson, § 52. 

Nature of Territofial Sovereignty. — Bluntschli, Arts. 276-277 ; ♦ Bonfib 
(Fauchille), Nos. 483-489; Bry, Nos. 121 flf.; i Calvo, §§ 260 ff. ; 
Despagnet, Nos. 385-386; i and 2 Fiore, Nos. 522 ff., 798; Fricker, Von 
Staatsgehitt (1867) ; i Halleck (Baker's 3d ed.), 150 ff. ; * Heilbom, System, 
etc., 5-36; *Heimburger, Der Erwerh der Gehietsloheit (1888); ♦Holtzen- 
dorff, in 2 Handbuch, 225-228; Kliiber, § 133; ♦Jellinek, AUgemeine 
Staatslehre (2nd ed.), 381-393 ; Lawrence (3d ed.), § 90; Liszt, §§ 8-9; i F. 
de Martens, § 87 ; G. F. de Martens, § 72 ; 2 M^rignhac, 352 ff. ; 2 Moore, 
Digest, § 175; I Nys, 402-412; *i Oppenheim, §§ 168-175; 2 P.-Fod6r6, 
Nos. 595-612; I Phillimore, §§ 150-154; *! Rivier, 135-142; i Twiss, 
§§ 140-144; Ullmann, § 86; Vattel, liv. I, § 205 and liv. II, {§ 79-^3; 

* Walker, Science, 41-43, 56, 69, 90-91 ; * i Westiake, 84-88 ; Ibid., Chap- 
ters, 129-133; Wheaton, §§ 161-163; Woolsey, § 56. 

Frontiers and Boundaries. — Bluntschli, Arts. 296-303 ; Bonfils 
(Fauchille), Nos. 486-489 ; i Calvo, §§ 342, 353 ; i Cobbett, Cases, 96 ff. ; 
Creasy, Nos. 230-231 ; Curzon, Frontiers (Romanes Lecture for 1907) ; 
Despagnet, No. 387 ; Field, Arts. 28-36 ; 2 Fiore, Nos. 799-806 ; * Funck- 
Brentano et Sorel, 17-20; Grotius, lib. II, c. 3, § 18; Hall, 122-125; i 
Halleck (Baker's 3d ed.), 171 ff. ; Heffter (Geffcken), § 66; Holtzendorff , in 
2 Handbuck, 232-239; Liszt, § 9; KlUber, § 133; i F. de Martens, §88; 

* I Moore, Digest, §§ 126-128, 154-162 ; Neumann, § 18 ; * i Nys, 412-422 ; 
*i Oppenheim, §§ 198-202; *2 P.-Fod6r6, Nos. 759-777; *i Rivier, 165- 
171; Scott, Cases, 75-85, 116-132; Taylor, § 251 ; i Twiss, §§ 147-148, 
153; Ullmann, §91; Vattel, liv. I, §§ 266 ff. ; i Westiake, 141-142 ; Whea- 
ton, §§ 192, 194-196, 202. 



CHAPTER Xn 

MODBS OF THE ACQUISITION AND LOSS OF TERRITORY 

169. There are five modes by which a State may acquire a 
legal title to territory. 

Accretion. — (I) By Accretion, which is, comparatively speak- 
ing, of slight importance. It consists in the increase or enlarge- 
ment of the land territory of a State mainly* through the action 
of its rivers or the ocean. These formations are usually caused 
by gradual alluvial deposits at the mouths of rivers (deltas) and 
on the seacoast, but they may result from sudden acts of vio- 
lence, as where a stream suddenly detaches a portion of the soil 
on one bank of the river and deposits it on the opposite bank. 
New islands formed in rivers, lakes, or within the maritime belt 
telong to the neighboring State or States. In the latter case, 
the marine league is measured from the shores of such islands.^ 

170. Prescription. — (II) By Prescription, which has been 
well defined as " the acquisition of sovereignty over a territory 
through continuous and undisturbed exercise of sovereignty 
over it during such a period as is necessary to create under the 
influence of historical development the general conviction that 
the present condition of things is in conformity with inter- 
national order."* 

It has been denied* that usticapion or acquisitive prescrip- 

^ Such formations may also be artificial, as in the case of embankments, dikes, 
etc., built along a river or on the seacoast. Holland lias wrested considerable por- 
tions of her territory from the ocean. 

The rules Kovemiag accretion are derived from the Roman I^w. See Justinian, 
2 InsHttUes, I, 20-24 ; 42 Digest, I, 7, 29, 65 ; and Grotius, II, c. 8, §§ 8-16. 

' See supra J § 161, n. 8, for the decision of Lord Stowell in the case of The Anna 
(1805), 5 Rob. 373, and Scott, 684. For the rules relating to river boundaries, see 
ju^ay § 165. 

' I Oppenheim, § 242, p. 294. 

* By Heffter, § 12; KlUber, §§ 6 and 125: 2 M6rignhac, 415-418; Pomeroy, 
}§ 107-114; G. F. de Martens, §§ 70-71 ; iF.de Martens, 1 90; and Ullmann (2nd 

179 



i8o ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

tion can furnish a good title to territory, but the majority of 
publicists admit that long-continuous and imintemipted pos- 
session purges a title which may originally have been tainted 
with fraud or violence. This latter view, which is in accord 
with international practice,* is based upon the need of inter- 
national order and stability. There is, however, no definite 
time limit in International Law which acts as a bar to claims 
against the possessor. 

171. Conquest or Subjugation. — (III) By Conquest or Sulh 
jugation} A completed conquest is the incorporation of for- 
eign territory, i.e, its complete and permanent subjection to 
the territorial jurisdiction of the conquering or occupying 
State, after its subjugation by armed forces. This incorpora- 
tion must be shown by some act showing intention (such as a 
decree of annexation) and ability to maintain permanent pos- 
session. 

Several leading authorities ^ refuse to recognize conquest as a 

cd.)i § 92, p. 308. Some of the authorities follow Grotius (xi, c. 4) who rejects 
the usucapion or acquisitive prescription of the Roman law, but accepts a title based 
upon immemorial possession ; the others wholly reject international prescription. 

' Considerable portions of the territory of modem Europe {e,^. Poland) may be 
said to be held by a title originally based on prescription and conquest, and later 
recognized by treaties, etc. 

The treaty of Washington (1897) for the settlement of the boundary dispute 
between Great Britain and Venezuela laid down the following rule (among others) 
for the conduct of the arbitrators: '^Adverse holding or prescription during a 
period of fifty years shall make a good title. The arbitrators may deem exclusive 
political control of a district, as well as actual settlement thereof, sufficient to 
constitute adverse holding or to make title by prescription. '' i Moore, Digest^ § 
88, p. 297. 

For other instances of international practice, see Ralston, in 4 i4. /. (1910), 153- 
144. On Prescription J see especially (in addition to the references at the end of 
this chapter) Audinet, in 3 R. D. /. P. (1898), 313 ff. 

' Oppenheim (I, § 236 and II, $ 264) distinguishes between conquest and sub- 
jugation. This is correct from his point of view, for he uses the term "conquest" 
in the sense of elective military occupation. While this undoubtedly corresponds 
with the usual or popular use of the term, it does not represent the technical mean- 
ing of the words as employed by most of the authorities on the Law of Nations. 
The substitution of "subjugation" for "conquest" as a source of title to territory 
would scarcely remove all danger of misunderstanding, for it would also be necessary 
to distinguish between its popular and technical meaning. 

On Miliiary or Belligerent Occupation ^ which should be clearly distinguished from 
conquest, see infra, ch. 26. 

^ Bonfils, No. 535 ; Despagnet, No. 863 ; 2 and 3 Fiore, Nos. 863 and 1693. 
Cited by x Oppenheim, 289 n. Audinet (3 R, D. I. P., 1896, 320) appears to think 



ACQUISITION AND LOSS OF TERRITORY i8i 

legal mode of acquiring territory, but this view is in contra- 
diction with the facts of historical development and inter- 
national practice. Whatever may be said as to the desirability 
of abolishing the so-called right of conquest, and however 
desirable that the validity of titles based upon fraud and vio- 
lence be denied,^ we cannot substitute our wishes for realities 
or create rules of International Law by ignoring the practice of 
nations.* 

Titles based upon conquest should be dearly distinguished 
from those derived from prescription on the one hand, and 
cession on the other. Most titles popularly supposed to be 
based upon conquest are, technically speaking, based upon 
cession.*® 

172. Distinction between Conquest, Cession, and Prescrip- 
tion. — " Title by conquest differs from title by cession in that 
the transfer of the territory is not effected by treaty, and from 

that titles usually cited as based upon conquest are really based upon prescription ; 
but this view, while applicable in some cases, is clearly untenable in other instances. 

* The writer is among those who ardently desire that some future Hague Con- 
ference may abolish this so-called right of conquest, or at least declare titles based 
upon future conquests invalid. He b of the opinion that this would be an impor- 
tant step in the direction of international peace. 

Respecting this so-called right of conquest, it would seem that modem Inter- 
national Law neither denies nor affirms, but it unquestionably recognizes the validity 
of titles based upon conquest. 

' "Conquest gives a title which the courts of the conqueror cannot deny, what- 
ever the private and speculative opinions of individuals may be respecting the 
original justice of the claim which has been successfully asserted." Chief Justice 
Marshall, in Johnson v. Mtlntosh (1823), 8 Wheat. 543, 588, and Scott, 71. 

1^ Thus, our title to the Philippine Islands is technically based upon cession. It 
would be based upon conquest if they had been formally annexed without express 
cession by Spain, and if we had continued to hold and govern them after the sub- 
stantial cessation of hostilities. It would be based upon prescription if we had 
simply continued to hold and govern them for an indefinite length of time without 
notification or an act of formal annexation. Of course, these suppositions ignore 
constitutional obstacles. 

Recent instances of conquest have been those of Hanover, etc., by Prussia in 
1866, and the Orange Free State and South African Republic by Great Britain in 
1900-1901. 

Napoleon the Great's conquests were generally recognized, having, indeed , usu- 
ally been secured by cessions. There were, however, several cases in which the 
legality of his acts was disputed. The most famous of these was the Case of ike 
Elector of Hesse Cassel. For the main facts bearing on this case, see Hall (5th ed.), 
567-569; 2 Halleck (3d ed.), 496-499; 3 Phillimore, §§ 568-574; Snow, Cases ^ 

381-383. 



i82 ESSENTIALS OF INTERNATIONAL PUBUC LAW 

title by prescription in that there is a definite act or series of 
acts out of which the title arises. These acts are successful 
military operations; but if a province conquered in a war is 
afterwards made over to the victorious power by treaty, it is 
acquired by cession. Title by conquest arises only when no 
formal interiiational document transfers the territory to its 
new possessor. Title by prescription arises only when no fact 
but long-continued possession can be alleged as a foundation 
for the existence of sovereign rights." " 

173. Effects of Conquest. — The main effects of conquest, 
like those of cession, on the native inhabitants of the con- 
quered or ceded territory have been considered in the chapter 
on " The Succession of States." The most important general 
principle governing this subject is that the conquering or an- 
nexing sovereign does not, by the mere fact of cession or con- 
quest, acquire any special rights over the lives and private 
property of his new subjects. They fall, of course, imder his 
personal and territorial jurisdiction; but in the absence of 
express legislation, their private and property rights remain 
unaffected. 

174. Cession. — (IV) By Ctf55*(w, which consists in the formal 
transfer by convention of territory from one State to another. 
The treaty of cession usually contains stipulations respecting 
the rights and duties of allegiance or nationality, the propor- 
tionate share of the public debt to be assimied by the annexing 
or ceding State, etc. ; but no general rules can be laid down 
governing these matters. 

From the standpoint of International Ethics, cessions might 
be classified as voluntary or forcible, i.e. as due to the volun- 
tary action of the ceding State during a time of peace or as re- 
sulting from armed coercion at the close of a war. But such a 
division would be valueless from the point of view of Inter- 
national Law, inasmuch as there is a legal fiction that all cessions 
are volimtary, whether brought about by conquest or by more 
peaceable means. 

175. Classification of Cessions. — From a legal standpoint, 
cessions may be said to be with or without consideration. 

n Lawrence, Principles (3d ed.), i 98. C/. Ihid. (4th od.), § 77. 



ACQUISITION AND LOSS OF TERRITORY 183 

(i) They may be sold or exchanged. Sales of territory are 
less frequent than formerly, but they are familiar to the student 
of American History who will readily recall the purchase of 
Louisiana, Florida, and Alaska. Exchange is also less frequent 
than formerly, though there are several instances in recent 
European History. By the Treaty of Berlin in 1878, Roumania 
ceded to Russia a portion of Bessarabia in exchange for the 
Dobroutcha, and the island of Heligoland in the North Sea was 
ceded by England to Germany in exchange for territory in 
East Africa in 1890. 

(2) The great majority of modem cessions are in the form of 
gifts. Free or voluntary gifts of territory are, indeed, rare, and 
cessions of territory without consideration are usually found in 
treaties of peace, i,e. they are really forced gifts. Recent 
instances are the cession of the southern portion of the island 
of Sakhalin by Russia to Japan in 1905, and the cession of 
Porto Rica ^ by Spain to the United States in 1898. 

176. The Plebiscite. — Several publicists ^' maintain that an 
affirmative popular vote is desirable or necessary on the part 
of the inhabitants of the ceded district in order to give validity 
to a cession of their territory. The theory of the plebiscite was 
first systematically applied to territorial cessions during the 
French Revolution, and was especially advocated by Napoleon 
III, by whom it was applied to the annexation of Nice and 
Savoy by France in i860, and to the cession of Venice to Italy 
in 1866." The custom, while not objectionable in itself, is liable 
to certain abuses in practice, and can be said to have only a 

" Cessions by marriage settlement and testament have practically ceased since 
the disappearance of the patrimonial conception of the State. That the latter form 
of cession is not wholly obsolete under an absolutistic regime is shown by the will 
of Leopold II, Ring of the Belgians, bequeathing the Congo Free State to Belgium. 
For the text of this " curious will," see i Oppenheim, § 216, p. 271 n. 

^* Among the few advocates of the plebiscite in the case of cession are : Funck- 
Brentano et Sorel (1887), 157 f. and 335 ff.; Rouard de Card, Etudes, 37-74; and 
Rotteck, Art. " Abtretung " in Staaiswoerterbuch (begun in 1834 and cited by i 
Rivier, 210). This theory finds very little favor amongst authorities on Interna- 
tional Law. 

^* The plebiscite was also applied on a large scale by Sardinia (i860 to 1870) in 
the creation of the modem kingdom of Italy, and by France to the island of St. 
Barthelemy, which was ceded to France by Sweden in 1877. It should especially 
be noted that the plebbcite has never found favor in the eyes of either Great Britain 
or the United States. 



i84 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

very limited sanction, either in theory or in practice. In any 
case, it is certain that the legal validity of a title based on cession 
does not require such action on the part of the inhabitants of 
the ceded territory. 

177. The Option. — It has, on the other hand, been custom- 
ary, at least during the second half of the nineteenth century, 
to insert in treaties of cession a clause granting to the inhabit- 
ants of the ceded territory the option of retaining their old 
allegiance or citizenship by means of an express declaration to 
this effect. But it appears to be the law that, in the absence 
of an express stipulation to the contrary, the annexing State 
may, for the sake of safety, expel those of the inhabitants who 
choose to retain their old allegiance. Many treaties stipulate 
for the option to emigrate within a certain period. Some per- 
mit option without requiring emigration." 

178. Disguised Cessions. — There are several forms of 
cessions which have been aptly described as disguised or in- 
direct cessions. 

(i) The various leases of territory for a term of years (usually 
99 years) which have been quite frequent, particularly in China, 
within recent years. Examples are the lease of the ports of 
Kiao-chau to Germany, of Port Arthur and Talien-wan (Dalny) 
to Russia, and Wei-hai-wei to Great Britain in 1898. 

" The Treaty of 1898 between the United States and Spain appears to have 
granted the right of option to the S]>anish-bom residents of the Philippine Islands, 
but refused it to the native Filipinos. See Randolph, The Law and Policy 0/ 
Atmexaiion (1901), 60. For treaty stipulations on the subject, see Cogordan 
{La nationalilif etCy 2nd ed., 1890, 328 6.). On the cession of Alsace-Ix>rraine, see 
Ibid.f 358 ff. For the law and practice of the United States, see 3 Moore, Digest, 
§§ 379-380. 

"The nationality of the inhabitants of territory acquired by conquest or cession 
becomes that of the government under whose dominion they pass, subject to the 
right of election on their part to retain their former nationality by removal or other- 
wise, as may be provided." Chief Justice Fuller, in Boyd v. Thayer, 143 U. S. 135. 
See I Moore, p. 311, for citation of additional cases. 

On the Plebiscite and 0/><«)«, see especially : Bry, No. 175; •Bonfils(FauchiUe), 
Nos. 427-431, 567-571; Cabouat, Le5 annexions, etc. (1881), 192-218; •Cogor- 
dan, La naiionalitS, etc. (1890), 317-398; * Despagnet, Nos. 334-339, 400; * Funck- 
Brentano et Sorel (2d ed., 1887), 157 f., 335 flf., 503 f. ; Hall (5th ed.), 46-67 ; Liszt 
(3d. ed.),§ 10, pp. 92-95; I F. de Martens, § 90; *3 Moore, Digest, §§ 379-380; 
* 2 Nys, 16-26; * I Oppenheim, § 219; Randolph, The Law and Policy of Annexa- 
tion (1901), 59 ff.; I and 2 Rivier, 204-212, 438-439; * Seloss6, TraiU de V annex- 
ion (1880), 281-351 ; UUmann (2d ed.), 98; i Westlake, 70-74. 



ACQUISITION AND LOSS OF TERRITORY 185 

(2) Administrative occupation, i.e. the indefinite occupation 
of certain districts, islands, or provinces, as those of C}rprus and 
of Egypt by England in 1878 and 1882, and of Bosnia and 
Herzegovina by Austria in 1878. The latter provinces were 
formally annexed in 1909, but Cyprus and Egypt are still " occu- 
pied " by Great Britain, though subject to the nominal sover- 
eignty of Turkey.^* 

179. Occupation. — (V) By Occupation which has been de- 
fined as '' the act of appropriation by a State through which 
it intentionally acquires sovereignty over such territory as is 
at the time not under the sovereignty of another State." ^^ 

180. Conditions of Occupation. — Under the modem law of 
occupation which is derived from the Roman law of occupalio, 
at least two conditions are essential for complete title to terri- 
tory thus acquired. 

(i) The occupied territory must be res or territorium nuUiuSy 
i.e. at the time of occupation it must be either uninhabited or, 
if peopled by uncivilized tribes which are not politically organ- 
ized under any government possessing the marks of sovereignty,^* 
it must have remained unappropriated by any civilized State. 

^' On Disguised Cessions , see especially G6rard, Des cessions diguisis (1904) ; De 
Pouvourville, mt R, D. I, P. (1899), 113 ff. ; Perrinjaquet, in 16 R. D. I. P. (1909), 
316 ff. ; and i Westlake, 133-139- 

" Oppenheim, § 220, p. 275. Oppenheim thus distinguishes occupation from con- 
quest and cession: "Occupation as a mode of acquisition differs from subjuga- 
tion chiefly in so far as the conquered and afterwards annexed territory has hith- 
erto belonged to another State. Again, occupation differs from cession in so far 
as through cession the acquiring State receives sovereignty over the respective 
territory from the former o^*ner State." 

^ Such territory may once have been occupied and abandoned, but, as a rule, it 
has never been occupied. 

At the West African Conference of Berlin held in 1885, Mr. Kasson, the pleni- 
potentiary of the United States, declared that '-'- '" r ent " would gladly adhere 

to a more extended rule, to be bas. - . ^ - * * — ^nould aim at the voluntary 

consent of the natives whose country is taken possession of, in all cases where they 
had not provoked the aggression." But the Conference "hesitated to express an 
opinion" upon such "delicate questions." 

It is generally admitted, at least by Anglo-American authorities, that so-called 
treaties of cession by uncivilized chiefs or tribes have, strictly speaking, no legal' 
validity. These lack the necessary "capacity" to make valid contracts or treaties. 
In International Law, the possession of a government having the marks of sover- 
eignty is the test of civilization. See especially, Westlake, Chapters, 137-155; 
and Chief Justice Marshall, in /0/m5O» v. Mcintosh (1823), 8 Wheat. 543 and Scott, 
Cases, 71. Cf. infra, § 90. 



i36 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

(2) Occupation must be real or effective. This includes: 
(a) The animus domini or expression of intention as shown by 
a formal act of annexation^* or of notification to the other Powers. 
It must be a State act, i,e, made by properly authorized agents 
of the government, or subsequently ratified in case of settle- 
ment by unauthorized colonists, (b) Actual settlement or real 
and effective occupation. This involves at least the establish- 
ment of a resp>onsible administration capable of maintaining a 
degree of order sufficient for the protection of existing rights.** 

181. Discovery as a Title. — It will thus be seen that mere 
discovery,^ or even annexation, does not confer a valid tide to 

** '' The formalities accompanying annexation are not prescribed by International 
Law. In modem times it is usual to hoist the national flag and read a proclamation 
setting forth the intention of the government to take the territory in question as its 
own ; but any ceremony of clear import done on the spot in a public manner is 
sufficient." Lawrence, Principles (3d ed.), § 93, p. 147. Cf. Ibid. (4th ed.), 

§ 74, p. 152- 

*• Art. 35 of the General Act of the Berlin Conference (1884-1885) declares: — 

"The signatory Powers of the present Act recognize the obligation to assure, in 
the territories occupied by them, upon the coasts of the African Continent, the 
existence of an authority sufficient to cause acquired rights to be respected, and as 
the case may be, the liberty of commerce and of transit in the conditions agreed 
upon." For an English translation of the text of the General Act, see Supplement 
to 4 i4. 7. (1910), 7 B. For Arts. 34 and 35, see p. 24. 

Art. 34 declares : " Any Power which shall henceforth take possession of ter- 
ritory upon the coasts of the African continent outside of its present possessions, 
or which being hitherto without such possessions shall require them, as also any 
Power which shall assume a protectorate there, shall accompany the respective act 
with a notification addressed to the other signatory Powers of the present Act, in 
order to enable them, if need be to make good any claims of their own." 

It can hardly be successfully maintained that notification is at present essential to 
the validity of a title to territory acquired by occupation, at least outside of Africa. 

The Institute of International Law adopted a Project of ten articles Relative to 
the Occupation of Territory in 1888. It makes notification a condition of effective 
occupation. For the text of this Project, see Tableau, 145, or 10 Annuaire, 201. 
For the discussions of the Project and the reports of MM. de Martitz and Engel- 
hardt, see 9 and 10 Annuaire, 244 ff., 176 ff., and 201 ff. 

** Vast claims to territory were formerly based on mere discovery, especially if 
accompanied or followed by an assertion of possession. Thus England granted a 
wide stretch of territory in America extending ''from sea to sea" to the Pljrmouth 
Company in 1620, and Spain and Portugal claimed vast territory based on dis- 
covery and Papal grants. 

The history of occupation has been divided into three periods : (i) Up to the six- 
teenth century, acquisitions of new te^Titory were mainly based upon Papal grants. 
(2) In the sixteenth and seventeenth centuries the English, French, and Dutch, 
having refused to recognize the validity of the Papal grants to Spain and Portugal, 
based their claims on a priority of discovery or possession, or both. (3) During the 



ACQUISITION AND LOSS OF TERRITORY 187 

territory acquired by occupation. At the most it constitutes an 
inchoate title which in practice operates as a bar to occupation by 
another State within a reasonable time. For a State failing to 
respect the clearly expressed intention of another State to appro- 
priate a newly discovered or recently annexed terrUorium nuUius 
would be guilty of an unfriendly act. 

182. Extent of the Area of Occupation. — So far we are on 
solid gound, for the authorities appear to be unanimous. But 
there is a wide difference of opinion when it comes to the difficult 
question of determining the area within which an effective occu- 
pation operates. 

The older Anglo-American view is thus expressed by Twiss : 
" When a nation has discovered a country and notified its dis- 
covery,, it is presumed to intend to take possession of the whole 
country witlun those natural boundaries which are essential to 
the independence and security of its settlement." ^ This view is, 
generally speaking, repudiated, especially by recent Continental 
authorities, who demand actual or effective occupation of the 
whole area claimed. " No State can appropriate more territory 
through an act of occupation than it can regularly govern in 
time of peace with its effective means on the sp)ot." " 

eighteenth century, the publicists declared in favor of efifective possession — a 
doctrine which was put into practice in the partition of Africa in the latter half of 
the nineteenth century. 

On the history of occupation, see especially J^ze, Etude sur V occupation (1896), 
1-40; and Salomon, Uoccupalion des terrUoires sans maitre (1889), 31-101. For 
a brief account, see * Bonfils (Fauchille), Nos. $37-451 ; and Despagnet, No. 403. 

The recent discoveries in the Arctic and Antarctic Polar regions afford no basis for 
the assertion of title by Great Britain or the United States. See Scott and Balch, in 
3 and 4 i4. /. (1909 and 1910), 928 ff. and 267 ff. See also Waultrin, in 15 R. D. I, 
P. (1908), 78 ff., 185 ff., and 16 R. D. I. P., 649 ff., 401 ff. 

" I Twiss (2d ed., 1884), Peace^ § 124. C/. /6«/., The Oregon Territory^ 174. 
Cited by Westlake (Chapters ^ 172), who adds: ''But the principle of security can 
hardly be relied on as governing the distribution of territory except for very small 
areas contiguous to real settlements." 

The principle of security is thus stated by Hall (p. 104 of 5 th ed.), as to which he 
erroneously claims that "there is no difference of opinion " : "A settlement is enti- 
tled, not only to the lands actually inhabited or brought under its immediate con* 
trol, but to all those which may be needed for its security, and to the territory which 
may fairly be considered to be attendant upon them." 

This view is apparently shared by most of the Anglo-American publicists with 
the exception of Walker and Westlake. See e.g. Lawrence (3d ed.), § 94; i Philli- 
inoref § 137 ; Pomeroy, §§ 98 ff. ; and Taylor, § 99. 

" Holtzendorff , in 2 Handhuch^ '/b^. Cited with approval by Westlake (Ckap^ 
ferSf 166). 



1 88 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

In view of the conditions laid down with such apparent una- 
nimity as essential to effective occupation, it is difficult to avoid the 
conclusions of the more recent writers on this subject. The area 
of effective occupation can extend no farther than real possession 
or the actual exercise of sovereign rights over the region claimed. 
So much is necessary in order to confer a complete or legally 
valid title. But, as in the case of territory claimed on the basis 
of mere discovery or annexation, the occupier has a presumptive 
or inchoate title to such portions of the contiguous ^ or neigh- 
boring country (if it be ierritorium nuUius) as may be deemed 
necessary for defense or future settlement within a reason- 
able time, or which form a part of the geographical unity of the 
region actually settled. Such presumptive or inchoate title 
operates as a bar to settlement or colonization by another State. 

183. Islands. — It is almost unanimously * admitted that the 
occupation of a p>ortion of an island of moderate size amounts to 
occupation of the whole ; and that, in the case of a group of small 
islands, the actual occupation of one furnishes at least a presimipn 
tive title to all the rest. It is generally agreed that islands lying 
or forming within the marine league belong to the territory on the 
coast. 

"The limits of occupation are detennined by the material possibility of making 
the authority of the government respected within the extent of the territory 
occupied. There is no occupation where the power of the State is not felt.'' i F. 
de Martens, § 89, p. 464. See also to the same effect, J^, 285 ff. ; Liszt (3d ed.), 
§ 10, p. 95 ; 2 M6rignhac, 458 ; i Rivier, 196 ; and Salomon, 319 ff. ; Art. 35 of the 
General Act of the Conference of Berlin, cited above; and Art. i of the " Project 
Relative to the Occupation of Territory " adopted by the Institute of Intemationai 
Law in 1888. 

But Bonfib (No. 553) justly remarks : "It is reasonable that one should recognize 
in the occupying State a certain right of preference in respect to the future and 
definite acquisition of a free zone contiguous to its actual possessions." As to 
the extent of this zone, Bonfils favors the " reasonable principle, acceptable in theory, 
but more than difficult to apply in practice" — that the zone should indude all 
the country "forming a geographical unity with the point occupied." 

" The doctrine of contiguity, as set forth by Secretary Calhoun (see i Moore, 
Digest J § 81, pp. 264-265), is generally denied. For references, see J^ze, Elude 
sur Vouupation, 288. It can only be said to confer an inchoate or presumptive 
title, and then only for comparatively small or moderate areas. 

This theory of contiguity has been revived in our day in connection with the 
partition of Africa under the German name of Hinterland (Back Country), Sphere 
of Influence, etc. See infra ^ §§ 186-187. 

^ Salomon (U occupation, etc., 323) dissents from this view, but it ia generaliy 
admitted both in theory and practice. 



ACQUISITION AND LOSS OF TERRITORY 189 

184. Large Islands and Continents. — There is considerable 
authority in theory and practice for the view that in case of occu- 
pation of a certain seacoast, " possession is understood as 
extending into the interior country to the sources of the rivers 
empt3ang within that coast to all their branches and the country 
they cover."* This theory of the watershed should only be 
applied to rivers of moderate length, such as those emptjdng into 
the Atlantic Ocean on the eastern coast of the United States. 
It could have no reasonable application to such rivers as the 
Mississippi or the Columbia. 

In cases where there is intermediate vacant land contiguous 
to the settlements of two nations, " each nation has an equal title 
to extend its settlement over the intermediate vacant land, and 
thus it happens that the middle distance satisfies the juridical title, 
whilst it is the nearest approximation to a natural boundary, 
and the most convenient to determine." ^ 

The above statements may be regarded as fairly descriptive 
of the correct theory and practice, provided it be understood 
that the " title " or " possession " thus claimed are merely in- 
choate or presumptive. In no case can a fort or settlement at 
the mouth, of a river give title to the whole basin, as claimed 
by the United States in the Oregon controversy.* And the 

** Messrs. C. Pinckney and Monroe, U. S. ministers, to Mr. Cerallos, Spanish 
Minister, respecting the boundaries of the Louisiana territory (April 20, 1805), 
in 2 Am. State Papers (For. Rel.)^ 664. Cited by x Moore, Digest, § 81, p. 263. 

This is the first principle laid down by the United States. The second lays down 
the principle of the middle distance. "A third rule is, that, whenever any Euro- 
pean nation has thus acquired a right to any portion of territory on that [the 
American] continent, that right can never be diminished or afiFected by any other 
Power, by virtue of purchases made, by grants or conquests, of the natives within 
the limits thereof." 

These rules are expressly cited and adopted by i Phillimore, § 238, and i Twiss, 
S 125. The principle of the watershed is criticised by i Westlake, 113 f. 

^ Twiss, Peace, § 132, p. 216. The boundary line between the United States 
and Mexico (case of Texas) was finally drawn in accordance with this principle. 
See Hall (5th ed.), 106-108. "But there can be no doubt that natural boundaries 
would be preferred to an imaginary line in cases where these exist." Lawrence, 
(3d ed.), § 94, p. 152. 

" Mr. Gallatin to Mr. Addington, Dec. 19, 1826, in 6 Am, St. Papers (For. Rel.), 
667. Cited by i Moore, Digest, § 81, p. 263. 

The claim of the United States to the so-called Oregon Territory (between the 
Rocky Mountains and the Pacific Ocean, and between the 42d degree and 54th 
degree and 40 minutes of north latitude) was based upon the following grounds : 
(i) Prior discovery and exploration, and the establishment of the first posts and 



I90 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

occupation of one bank of a river does not confer a title to terri- 
tory up>on the opp>osite bank. 

There are several forms of disguised or qualified occupatioa 
which remain to be considered. 

185. Disguised or Qualified Occttpation. The Colonial Protec- 
torate. — The most imp>ortant of these is the Colonial Protec- 
torate ^ which may, indeed, amount to a virtual annexation. It 
has been defined as " a region in which there is no State of Inter- 
national Law to be protected, but which the Power that has 
assumed it does not yet claim to be internationally its territory, 
although that Power claims to exclude all other States from any 
action within it."^ Yet "the powers exercised in a [colonial] 
protectorate are in fact territorial.'' '* Jurisdiction is claimed 
and asserted over foreigners as well as over nationals of the 
protecting State, which incurs a certain measure of de facto 

settlements. (2) The virtual recognition of the title of the United States by the 
British Government as shown by the restitution of Astoria in accordance with the 
Treaty of Ghent in 181 4. (3) The acquisition by the Treaty of 1819 of the titles of 
Spain derived from discovery. (4) The ground of contiguity. 

The exclusive claim of the United States was opposed by Great Britain on the 
following grounds: (i) Prior discovery and contemporary exploration and estab- 
lishment of posts. (2) The express reservation of the British claims upon the 
restoration of Astoria in 1818. (3) A denial of the Spanish claims. (4) A denial 
of the doctrine of contiguity. 

The controversy ended, as such controversies usually result, in a compromise. 
The Treaty of Washington (1846) established the 49th degree of north latitude as 
the permanent boundary between the United States and the British possessions. 

On the Oregon Controversy, see especially: Foster, A Century of American Diplo- 
macy ^ 302-313; Hall (5th ed.), 108-111; * Moore, i and 5 DigestfH 80-81, 104,, 
835 ; *Ibid., I Int. Arbitrations, chs. 7 and 8 ; Pomeroy, § 103 ; * Twiss, The Oregon 
Question (1846); ♦Wheaton, §§ 172-176. 

In the equally famous boundary dispute between Great Britain and Venezuela,, 
the claims of Venezuela were based mainly upon Spanish discoveries and settle- 
ments ; those of Great Britain on prescription, conquest, and occupation, due to 
subsequent Dutch and British settlements. Through the intervention of the 
United States in 1895, the questions at issue were finally arbitrated in 1899. Great 
Britain secured through this award the greater part of the territory in dispute 
between Venezuela and British Guiana, but Venezuela retained the entire mout^ 
of the Orinoco River. 

On the Venezuelan Boundary Dispute, see Moore, i and 5 Digest, §§ 88, 966, pp. 
533-583. For a brief summary, see Hall (Atlay's 5th ed.), 1 1 i-i 13. 

^ See supra, § 106, for comparison with International Protectorates. It is 
sometimes difficult to draw the line of demarkation. 

* I Westlake, 123-124. 

» Hall, A Treatise on the Foreign Powers and Jurisdiction of the British Croun, 
§ 98, p. 224. 



ACQUISITION AND LOSS OF TERRITORY 191 

international resp>onsibility for the maintenance of order and the 
conduct of the natives over whom it exercises a certain amount of 
authority or control. The powers exercised within such a region 
usually have the sanction of treaties with the native chiefs or 
tribes, although the source of the legal validity of such authority 
and control as is exercised must be sought for in the laws, decrees, 
or charters of the protecting State rather than in these treaties 
with the natives. 

The main advantages of a colonial protectorate for the pro- 
tecting State are that it affords a means of excluding other Powers 
and preparing the way for annexation without incurring the 
burden of complete sovereignty and international responsibility 
involved in real and effective occupation; for the natives, it 
affords a means of gradual initiation into the mysteries of 
so-called civilized life. It appears also to be less objectionable 
to neighboring Powers than complete occupation. 

Article 34 of the General Act of the Berlin Conference lays 
down the same condition of notification for protectorates as for 
occupation on the African coast; but it is only to occupations 
that Article 35 attaches the obligation of insuring the establish- 
ment of authority^ "sufficient to protect acquired rights," etc. 
The authorities hold, however, that the exercise of a certain 
amount of authority (at least sufficient for the maintenance of a 
degree of order) is obligatory in a colonial protectorate as in a 
territory under real occupation. The difference is merely one of 
degree. The latter assumes the exercise of complete, the former 
of partial, sovereignty. 

i86. The Hinterland. — The American theory of contiguity 
has been revived in recent times in connection with the partition 
of Africa in the form of claims to the Hinterland (Back Country). 
Extensive regions in China and Africa extending far beyond any 

" The original proposal to extend this obligation to protectorates met with the 
opposition of England and Germany. But Arts, i and 2 of the " Project relative to 
Occupations of Territory ** adopted by the Institute of Int. Law in 1888 insists upon 
"the establishment of a local responsible power, provided with means sufficient to 
maintain order and to assure the regular exercise to its authority within the limits 
of the territory occupied " in the case of protectorates as well as of ordinary occupa- 
tions. Tableau, 145-146. This also appears to be the opinion of most of the 
authorities. Westlake (1, 124), for example, says: "There can be no doubt that 
the principle of that obligation applies equally to colonial protectorates." 



192 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

territory which could properly be denominated Hinterland have 
been divided up between the Powers into what are called** 
Spheres of Influence or Interest, 

187. Spheres of Influence or Interest. — Such divisions are 
based upon conventions, which appear to be mainly of two kinds : 

(i) Agreements for reciprocal abstention from territorial ac- 
quisition. An example is the Agreement of 1886 between Eng- 
land and Gennany : " Germany [or Great Britain] engages not 
to make acquisitions of territory, accept protectorates, or inter- 
fere with extension of British [or German] influence, and to give 
up any acquisitions of territory or protectorates already estab- 
lished in that part of tlie Western Pacific lying to the east, south- 
east, or south [or west, northwest, or north] of the said conven- 
tional line."** 

(2) Agreements not to alienate territory. An example is the 
Agreement of 1898 between Great Britain and China that the lat- 
ter " will never ahenate any territory in the provinces adjoining 
the Yangtsze to any other Power, whether under lease, mortgage, 
or any other designation."*^ Such agreements can have no legal 
validity except for the contracting parties. At the most they 
confer a feeble inchoate title which acts as a bar to trespass by 
third Powers. 

188. Loss of Territory. — As there are five modes of acquir- 
ing title to territory, so there are five corresponding modes of 
losing it, viz. physical loss, prescription, conquest, cession, and 
dereliction. There is also a sixth, viz. a successful revolt or 
rebellion, to which there is no corresponding mode of acquisition. 

189. Physical Loss of Territory. — There are only two modes 
of loss of territory which require any special discussion.** 

As territory may be increased through accretion, it may be 
diminished through physical means, such as earthquakes, vol- 
canic action, the washing of the waves, the gradual subsidence of 
the earth's surface, etc. In case of the disappearance of an island 
near the coast through volcanic action, the marine league would 

** There seems to be no clear distinction between these terms. Both are vague. 
Spheres of Influence appear to have more of a political^ Spheres of Interest rather 
an economic J significance. 

»< Cited by i Wcstlake, 128. »» Ibid., 132. 

^ The case of successful revolt has been considered under the head of ''Recogni- 
tion of Independence." supra ^ § 122. 



ACQUISITION AND LOSS OF TERRITORY 193 

thereafter be measured from the mainland instead of from the 
site of the former island.*^ 

190. Dereliction. — Dereliction corresp>onds to occupation. 
It is " effected through the owner's complete abandonment of 
the territory with the intention of withdrawing from it forever, 
thus .relinquishing sovereignty over it. Just as occupation re- 
quires, first, the actual taking into p>ossession {corpus) of terri- 
tory and, secondly, the intention (animus) to acquire sovereignty 
over it, so dereliction requires, first, actual abandonment of a 
territory, and, secondly, the intention to give up sovereignty 
over it. Actual abandonment alone does not involve dereliction 
as long as it must be presumed that the owner has the will and 
ability to retake possession of the territory. Thus, for instance, 
if the rising of natives forces a State to v^ithdraw from a territory, 
such territory is not derelict as long as the former possessor is able 
and makes efforts to retake p>ossession. It is only when a terri- 
tory is really derelict that any State may acquire it through occu- 
pation."" 

BIBUOGRAPHT 

Modes of Acquiring TerritofJ. — Bluntschli, Arts. 276-295 ; * Bonfils 
(Fauchille), Nos. 532-571; *Biy, Nos. 162-175; Bulmerincq, in i Mar- 
quardsen, § 47 ; Cabouat, Des annexions (1881), 100 ff. ; i and 5 Calvo, 
§§ 263-300, 3117-3118; Chretien, Nos. 121-141; Creasy, Nos. 212-227, 
249-255; I Despagnet, Nos. 38S-409; Engelhardt, in 18 R, D, I, (1886), 
433 flf., 573 flf. ; Field, CoJe, Pt. I, ch. 7; 2 Fiore, Nos. 840-864; Grotius, 
n, cc. 3, 4, 8, §§ 8-16; * Hall (5th ed.), 100-131, 566-573 ; i and 2 Hal- 
leck (Baker's 3d ed.), p. 154, and ch. 34, pp. 467-499; Heffter (Geffcken), 
§§ 69-70, 178, and Geffcken's note on p. 431 ; Heimburger, Def Enverh der 
Gebietshoheil (1889), 103 ff. ; Holtzendorff, in 2^ Handhuch, 252-274; Ibid., 
Eroberungen and EroberungsrecfU (1872) ; Jeze, Etude sur r occupation (1896) ; 
Klfiber, § 125; ♦Lawrence (3d ed.), §§ 92-104; Ibid. (4th ed.), §§ 74-78; 
Liszt (3d ed.), § 10; i F. de Martens, §§ 89-90; i G. F. de Martens, §§ 
35-45 and notes by Verg6 ; 2 M6rignhac, 410-198 ; * i Moore, Digest, 
§ 80-88 ; 2 Nys, 1-108 ; * I and 2 Oppenheim, §§ 209-243 and 264-265 ; 
Ortolan, Le domain int. (1851) ; * i PhiUimore, §§ 222-278, and 3 Ibid,, Pt. 

'^ For the rules governing changes in river boundaries, see supra, § 165. 

'^ I Oppenheim, § 247. For the cases of Santa Lucia and Delagoa Bay, see Hall, 
Z16-118. On the disputed claims of Brazil and England to the island of Trinidad, 
see I Moore, Digest, § 89. 

"The United States maintained that Navassa Island in 1857, whenti citizen of 
the United States took possession of it under the Guano Islands Act, was 'derelict 
and abandoned.'" i Moore, Digest, p. 299. See Jones v. U. 5. (1890), 137 U. S. 
202, and Scott, Cases, 38. 
o 



194 ESSENTIALS OF INTERNATIONAL PUBUC LAW 

Xn, ch. 6; I P6deli^vre, Nos. 419-443 ; Pomeroy, §§ 91-123 ; 2 P.-Foderc, 
N08. 781-833; I and 2 Rivier, 172-217 and 436-442; * Salomon, U occu- 
pation des Urriioire sans mattre (1889) ; Scaife, in 4 Papers of the Am. His- 
torical Assoc. (1890), No. 3, pp. 269-293; * Scott, Ccues, 38-44, 71-74, 95- 
97, 655-674; Snow, Cases, 6-12, 3^4^373 f 393-396; Scloss6, Traiti de 
Vannexion (1880), 61-98, 281 ff. ; Taylor, §§ 217-227; *i Twiss, ch. 8, 
§§ 1 13-139; Ibid.y The Oregon Question (1846); UUmann (2d ed.), §§ 92- 
98; * Vattel, liv. I, §§ 81, 203-210, and liv. II, 5§ 79-98, 140-151 ; Walker, 
Manual, §§ 9-13 ; i Wharton, Digest, §§ 2-3 ; Wheaton, §§ 161-176 ; * West- 
lake, 84-140; Ibid., Chapters, 134-177; Wilson, § 28. 

For additional references, especially on Occupation, see Bonfils (Fau- 
chille), (5th ed.), p. 319; Chretien, Nos. 142-146; Bulmerincq, in i Mar- 
quardsen, § 50; Gareis, § 70; Grotius, lib. II, c. 9; Hall (5th ed.), 116— 
118; Heffter, § 72; Holtzendorff, in 2 Handhuch, 274-79; Khiber, § 140; 
2 Merignhac, 449-450 ; * i Moore, § 89 ; * i Oppenheim, §§ 244-47 ; 
* I Phillimore, §§ 284-95; 2 P.-Foder6, Nos. 850-66; i Rivier, 217-220; 
Ullmann (2nd ed.), § 100. 

Colonial Protectontes, HinteiUuid Spheres of Inflnence, etc. — Bonfils 
(Fauchille),*Nos. 558-561; *Bry, Nos. 169-171; * Despagnet, £550* 5iir 
protectorat (1896), 218-277 ; Fiore, in 14 R. D. I. P. (1907), 148 ff. ; Gairal, 
Le protectorat int., 267 ff. ; Hall (5th ed.), 1 25-131 ; * Ibid., Foreign Powers 
and Jurisdiction of the British Crown, 204-238; Lawrence, Principles (3d 
ed.), §§ 102-104; Ibid. (4th ed.), §§ 79-81; 2 M6rignhac, 435 ff. ; 2 Nys, 
80-108 ; G. Meyer, Die staatsrechtliche SteUung der deutschen Schutzgebiete 
(1888); Perrinjaquet, in 16 R. D. I. P. (1909), 316 ff. ; De Pouvourville, 
ia 6 R. D. I. P. (1889), 113 ff. ; i Rivier, 89-91 ; 177-179; ♦Stengel, Die 
stoats und volkerrechtliche SteUung der deutschen Cotonien (1886), and Deutsche 
Colonialstaatsrecht (1887); *i Westlake, 1 19-140; Ibid., Chapters, 177-189. 



CHAPTER Xin 

TERRITORIAL WATERS 

191. (I) The Marginal Sea. — The territory of a State bor- 
dering on the open sea also mcludes the Territorial or Marginal 
Sea, which is usually held to be a marine league measured from 
the low-water mark.^ 

192. History of the Marine' League. — The three-mile limit, 
or marine league, was originally based upon the principle first 
clearly enunciated by Bynkershoek^ in the early part of the 
eighteenth century that the territorial sovereignty or jurisdic- 
tion of the State is limited by its pwwer to defend its seacoast by 
force of arms — potestaiem terra finiri ubi finitur artnorum vis, 
i.e. quausque tarmenta explodutUur. The range of the cannon of 
that day seems to have been about a marine league or three 
nautical miles, and this distance became the generally recognized 
limit of the marginal sea in the course of the eighteenth century. 
During the nineteenth century the rule of the marine league ap- 
pears to have completely supplanted the principle upon which it 

^ That the jurisdiction of a State over its littoral or marginal sea is based upon 
territorial sovereignty is denied by some good authorities on what appear to be 
insufficient grounds. For a criticism of their views, see especially Heilbom, Sys- 
^^^t 37~S7 ; I Oppenheim, § 185 ; Schficking, Das KUstenmeer, 14-20; and i West- 
lake, 191-193. 

For the argument against the doctrine of territorial sovereignty as applied to 
territorial waters, see De Lapradelle, in 5 i?. />. /. P. (1898), 264 ff. For the views 
of leading authorities on this point, see De Lapradelle, op. cit,^ 271-272. 

Jurisdiction over territorial waters may, of course, include property rights, but 
it is not essentially based upon property, as many of the older authorities supposed. 

The low-water mark is usually taken as the starting point for the measurement 
of the marine league, but there is a considerable variety of opinion on this point. 
See, e.g. Imbart de Latour, La mer terrUoriaU^ 20 flf. ; i Nys, 502-505 ; and i Oppen- 
heim, § 186. The low-water mark has the sanction of many treaties, the British 
Territorial Waters Jurisdiction Act of 1876, and of the Institute of International 
Xaw. See 13 Anmtairey 329. 

' Dedominio maris (1702), ch. 2. Cf. the vaguer statements of Grotius (lib. II, 
-cap- 3» S§ 13 and 14), and Vattel (liv. I, ch. 23, § 289). 

195 



196 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

was originally based ; and, instead of being extended to meet the 
demands of new modem guns of ever increasing range, it has 
always remained the same until it is now apparently as fixed and 
imalterable as were the laws of the Medes and the Persians. And 
this in spite of the protests of publicists and the efforts of states- 
men.' 

There can be no doubt that an extension of the three-mile 
limit for all territorial purposes would be highly desirable. The 
marine league no longer satisfies the needs of modem require- 
ments for defense. An extension to meet these requirements is 
certainly favored by an ever increasing number of publicists, 
and has been strongly recommended by the Institute of Inter- 
national Law.^ 

193. Right of Innocent Passage. — Though the marginal sea 
is undoubtedly territorial, '^ all ships without distinction have 
the right of innocent passage through the territorial sea, saving 
to belligerents the right of regulating such passage and of for- 
bidding it to any ship for the purpose of defense, and saving to 

* The great majority of modem publicists favor an extension of the three-mile 
limit, but some of them do not distinguish clearly between the present three- 
mile rule and the principle upon which it was originally baaed. For references, 
see the Bibliography at the end of this chapter. 

In 1806 the Government of the United States attempted to obtain a recogni- 
tion of a six-mile limit from England, but refused to admit a claim of six miles made 
by Spain to the Cuban coast in 1863 and 1864. Secretary Seward, in i Moore, § 146. 
In 1864 Secretary Seward proposed a zone of five miles to the British Legation at 
Washington, i Moore, § 152. The British Government has, however, alwa>'5 
insisted upon the three-mile limit. Norway claims four miles. See Aubert, in i 
R. D. /. P. (1894), 429 ff- 

The three-mile limit has the sanction of a considerable number of State Acts 
and Treaties, e.g, the Russian Prize Rules of 1869, the British Territorial Waters 
Acts of 1876, French legislation in 1866 and 1888, the North Sea Fisheries Conven- 
tion of 1882, the Convention of Constantinople relating to the Suez Canal of 1888, 
and the Convention of 1893 concerning the Behring Sea. For additional treaties, 
ee I Calvo, § 356 ; and i Nys, 509. 

* In 1894, the Institute of International Law, after an exhaustive discussion of this 
question, voted by a decisive majority (there was no division of opinion as to the 
desirability of extending the three-mile limit) in favor of a zone of six marine miles 
for all territorial purposes. It even permitted the extension of this zone for pur- 
poses of neutrality beyond six miles in time of war, provided the range of cannon 
shot were not exceeded. See 13 Annuaire^ 329, or Tableau dicennal (i 894-1904), 

340 ff. 

The maritime Powers were urged to hold an International Congress for the 
adoption of these or similar rules, but no such Congress has even been held. It 
is highly desirable that this recommendation by the Institute be acted upon. 



TERRITORIAL WATERS 197 

neutrals the right of regulating the passage of ships of war of all 
nationalities through the said sea." ^ But such vessels, if mer- 
chantmen, are probably liable in principle to the jurisdiction of 
the riparian State.' 

194. Exercise of Authority beyond the Marine League. — 
There is considerable authority and practice in favor of the view 
that for purposes of defense and in order to execute its revenue 

'Art. 5 of the Rules adopted by Institute of Internatioiial Law. See 13 
Annuaire, 329. Translated by i Westlake, 189. 

This is unquestionably a rule of International Law based on the universal prac- 
tice of nations. It, of course, does not include cabotage or the right to engage 
in the coasting trade. 

Art. 7 declares that ''ships which pass through territorial waters must conform to 
the special regulations published by the littoral State in the interest and for the 
safety of the navigation or as a matter of maritime police." As Westlake (I, p. 
190) points out : ''The right of the littoral State to publish regulations in the inter- 
est of navigation does not include a right to exact payment of dues, by ships not 
entering its harbors, under pretext of providing the navigation with necessary lights 
and buoys." See also i Oppenheim, § 188. 

There is a difference of opinion as to whether warships enjoy the right of inno- 
cent passage through the territorial waters. They certainly have the customary 
right of passage through such portions of the marginal sea as constitute international 
highways. See i Oppenheim, §i 188 and 449. Hall (p. 159 of 5th ed.) denies that 
the right of innocent passage extends to warships. For a refutation of thb view, see 
Westlake (1, 192), who points out that the "ship of war as well as the merchantman 
may have a lawful errand beyond the littoral sea in question," which "in the course 
of its lawful voyage it may be difficult for it to avoid." 

Oppenheim (I, § 449) is of the opinion that "a State is in strict law always com- 
petent to exclude men-of-war from all or certain of its ports and from those terri- 
torial waters which do not serve as highways for international traffic." 

This is undoubtedly the law in respect to ports and international highways. But 
Oppenheim (I, § 188) elsewhere admits that "as a rule, however, no State actually 
opposes in time of peace the passage of foreign men-of-war and other public vessels 
through its maritime belt," and that "a usage has grown up by which such passage, 
if in every way inoffensive and without danger, shall not be denied in time of peace." 

* The authorities are divided on this point. Art. 6 of the Rules adopted by the 
Institute (see supra) declares: "Crimes and offences committed on board foreign 
ships passing through the territorial sea by persons on board of them against per- 
sons or things on board the same ship, are as such outside the jurisdiction of the 
littoral State, unless they involve a violation of the rights or interests of the littoral 
State or of its subjects not forming part of the crew or passengers." 

This is a good practical rule and it represents the prevailing custom, but it may be 
doubted whether it is a principle of International Law. As in the analagous case 
of jurisdiction over foreign merchantmen in port (see infrat §211), it would seem that 
there is no good reason for denying local jurisdiction over passing vessels in princi- 
ple. The British Territorial Waters Act of 1878 claims such jurisdiction. See 
especially Hall (5th ed.), 204-206; i Oppenheim, § 189; and i Westlake, 254 ff. 

On the Immunity of Warships jrom Local Jurisdiction, see, infra, $ 209. 



198 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

and sanitary laws, a State may exercise a limited authority 
beyond the three-mile limit. Such limited authority or juris- 
diction has been asserted and exercised, at least by Great Brit- 
ain,^ the United States,* and France ;* and, whether on the basis 
of comity ^® or of law, appears to encounter no opposition on the 

' The British Hovering Acts (9 Geo. II, c. 35 and 24 Geo. Ill, c. 47) of 1736 and 
1784 asserted a jurisdiction, for revenue purposes and for the prevention of ''hover- 
ing " on the coast in a menacing and annoying manner, to a distance of four leagues 
from the shore. They have long since been repealed. Atlay (note 1 79 a to VVheaton) 
tells us that '' the present customs legislation [of Great Britain] makes a distinction 
as regards the extent of jurisdiction claimed for revenue purposes between ships 
belonging to British subjects and ships belonging to foreigners." While assert- 
ing a jurisdiction extending three leagues from the shore in case of British subjects, 
it only claims one league if the owners are not British. See Customs Act of 1876, 
39 and 40 Vict., c. 36. '* British Acts of Parliament require vessels liable to quaran- 
tine or having infectious diseases on board to observe certain regulations when 
within two leagues of the coast of the United Kingdom, but they authorize no 
enforcement of those regulations except by the recovery of a penalty from the 
captain when the vessel arrives within the territory. " i Westlake, 152. 

For a very full discussion and defense of the British Hovering and Quarantine or 
Pul)lic Health Acts, see 2 Piggott, Nationality ^ 40-60. 

* The revenue laws of the United States, embodied in the Act of 1799 (§ 27) 
and incorporated into the Revised Statutes (sec. 2760), direct the officers of the reve- 
nue cutters to "go on board all vessels which arrive within the United States or 
within four leagues thereof, if bound for the United States, and search and examine 
the same, and every part thereof, and [they] shall demand, receive, and certify the 
manifests required to be on board certain vessels, . . . and [they] shall remain 
on board such vessels until they arrive at the port or place of their destination.*' 
I Moore, § 151, pp. 725-726. 

It should be especially noted that the law does not authorize the seizure of a 
foreign vessel beyond the three-mile limit, as has sometimes been asserted. It 
merely prescribes visit and search. "The Statute (of 1797) may weU be construed 
to mean only that a foreign vessel, coming to an American port, and there seized 
for a violation of revenue regulations committed out of the jurisdiction of the 
United States, may be confiscated ; but that, to complete the forfeiture, it is essen- 
tial that the vessel shall be bound to and shall come within the territory of the 
United States, after the prohibited act. The act done beyond the jurisdiction is 
assumed to be part of an attempt to violate the revenue laws within the jurisdiction." 
Dana's note 108 to Wheaton, § 179, p. 258. See also i Moore, § 151, p. 726. 

' It appears that France authorizes visit and search for the enforcement of reve- 
nue laws to a distance of two myriameters or about four leagues. 2 M6rignhac, 
387; I Nys, 514; and 2 P.-Fod6r6, No. 173. 

The French Government insisted that the battle between the Alabama and 
Kearsarge should not take place within the range of cannon shot from the coast. 
I Moore, § 150. 

*° Twiss (I, § 190) remarks on this head : "Such laws and regulations, however, 
have no foundation of strict right against other nations. ... It is only under the 
Comity of Nations in matters of trade and health that a State can venture to enforce 
any portion of her Civil Law against foreign vessels, which have not as yet come 



TERRITORIAL WATERS 199 

part of other States. But such exercise of limited authority to 
enforce revenue or quarantine regulations does not justify the 
seizure " of foreign vessels outside the territorial waters, except 
possibly in cases of extreme necessity on grounds of self-defense, 
or when a hot pursuit begxm in marginal waters is continued on 
the open sea." 

within the limits of her maritime jurisdiction." He calls it a "permissive'* juris- 
diction and cites the case of The Appollon (1824), 9 Wheaton, 362. 

The main point of this decision is thus stated in the syllabus at the head of the 
case : " It seems that the right of visitation and search, for enforcing the revenue 
laws of a nation, may be exercised beyond territorial jurisdiction, upon the high 
seas, and on vessels belonging to such nation, or bound to its ports." 

Oppenheim (I, § 190) disagrees with the view of Twiss and Phillimore. He says : 
"I believe that, since Municipal Laws of the above kind have been in existence for 
more than a hundred years and have not been opposed by other States, a customary 
rule of the Law of Nations may be said to exist which allows riparian States in the 
interest of their revenue and sanitary laws to impose certain duties on such foreign 
vessels bound to their ports, as are approaching, although not yet within, their 
territorial maritime belt." 

" In Rose v. Himely (1808), 4 Cranch, 241, Chief Justice Marshall and a majority 
of our Supreme Court held that *^a seizure beyond the limits of the territorial 
jurisdiction for breach of municipal regulations, is not warranted by the Law of 
Nations." C/. to the same effect The Louis (1817), 2 Dodson, 210 and Scott, 

It has been claimed (Taylor, § 248) that Rose v. Himely was overruled by Hudson 
v. Guestier (1810), 6 Cranch, 281. This was the opinion of Chief Justice Marshall 
himself, but the report of the latter case leaves this point doubtful. See Dana's 
note 108 to Wheaton, § 179, pp. 259-260, and i Moore, Digest, § 151, p. 729. 

Rose V. Himely is certainly in conflict with certain views previously expressed by 
Chief Justice Marshall in Church v. Hubbart (1804), 2 Cranch, 187; Scott, 343; 
and I Moore, 727-728. But the real purport of this decision was that "the court 
did not undertake to pronounce judicially, in a suit on a private contract (a policy 
of insurance) that a seizure of an American vessel made at four leagues, by a foreign 
power, was void." Dana, note xo8 to Wheaton, p. 259, and i Moore, p. 729. 

A novel question was raised in .\laska in 1904. Driven from the region of Cape 
Nome, the gamblers of that section established a gambling house on the ice beyond 
the three-mile limit. Did the United States Government have jurisdiction? 
For various answers, see Holland, in Chronique, 11 R. D. I. P. (1904), 340-345; 
31 /. /. P., 503 ; and 2 M6rignhac, 384. 

" Art. 8 of the rules adopted in 1894 by the Institute 0/ International Law 
declares: "The littoral State has the right to continue on the high seas a pursuit 
commenced in the territorial sea, and to arrest and judge the ship which has broken 
its laws Tuithin its waters. In case, however, of capture on the high sea, the fact 
shall be notified without delay to the State of which the ship carries the flag. The 
pursuit must be interrupted as soon as the ship enters the territorial sea of its own 
country or of a third Power. The right to pursue is at an end as soon as the ship has 
entered a part of its own country or of a third Power." 13 /I nnuaire, 330. Trans- 
lated by I Westlake, 189. This resolution was voted unanimously. 

This doctrine has the sanction of Bluntschli, Art. 342 Hall (5th ed.), 256 ; Snow, 



200 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

195. (n) Bays and Gulfs. — The territorial waters naturally 
include ports, harbors, roadsteads, and river mouths. They also 
include such bays and gulfs as are almost wholly inclosed by the 
territory of a single State and whose entrance from the ocean is 
narrow enough to be commanded by forts or shore batteries 
erected on one or both sides of the entrance, even if the entrance 
be wider than six miles or two marine leagues." The entrance 
is formed by a line drawn from headland to headland. Some 
States claim jurisdiction over certain bays whose entrance is too 
wide to be effectively commanded by coast defenses," and such 
claims would seem to have the sanction of the Law of Nations, 
provided they are based upon immemorial custom." 

sect. 26; I Rivier, 151; i Westlake, 173-174; and Woolsey, 58. See eqiedally 
2 Piggott, Nationality f 35-40. It is denied by Asser (see i Westlake, 174) ; Dana, 
note 108 to Wheaton, p. 260; Field, ^\rt. 626; i Phillimore, 198; and Twiss, 
5190. 

In 1 89 1 the /to/a, a transport in the service of Chilean insurgents, was accused 
of violating the neutrality laws of the United States. She was pursued by American 
naval forces from San Diego, California to Iquique, Chile, where she was surrendered 
to Admiral McCann under duress, but without resistance. The United States 
and Chilean Claims Commission decided that "the United States committed an 
act for which they are liable to damages and for which they should be held to an- 
swer." 3 Moore, Int. Arbitrations^ 3070. For the facts of the case, see also U. S. 
v. Trumbull (1891), 48 Fed. Rep. 99 and Scott, 731; 2 Moore's i>tgej/, § 316; 
and Snow, Int. Law^ 132-134. It should be noted that the lUUa was pursued 
into Chilean territorial waters. 

^ The statement of this rule is that of Oppenheim (I, § 191) slightly modified. 
See also Ibid.j in i Zeitschrift (1906), 579-587. 

Some publicists claim that gulfs or bays with an entrance wider than ten miles 
cannot be claimed as wholly territorial. But the Institute of International Law 
(see 13 Annuaire, 329) voted in favor twelve miles, unless a long-continued usage 
had established a more extensive jurisdiction. 

^* The United States claims the whole of the Delaware and Chesapeake Bays as 
territorial. See i Moore, Digest j 153, pp. 735-739, for opinion of Att.-Gen. 
Randolph (1793) ^^ ^^ ^^^^^ ^^ ^^ Grange; and 4 and 5 Moore, Int. Arbitra- 
tions, 4333, 4675, and Scott, 143 for the Alleganean (1885). 

Great Britain holds Conception Bay in Newfoundland (which has an average 
width of fifteen miles, an entrance of twenty miles, and a depth of about forty miles) 
to be territorial. See i Moore, § 53, p. 740, and Snow, Cases^ 45-47 for The Untied 
States Cable Co. v. The Anglo-American Telegraph Co. Great Britain also asserts 
jurisdiction over foreign as well as native fishermen in the Moray Firth. Morten- 
sen V. PeterSy 14 Scots Law Times Rep., Pts. 13 and 14. See also i A, J. (1907), 
526, and I Zeitschrift y 583 and 588 ff. 

It appears that Russia also claims jurisdiction over the White Sea. See " Vafair 
de VOnward Ho" in 18 R. D. I. P, (191 1), 94-99. For recent Canadian claims to 
the Hudson Bay, see Balch, in 6 A. /., (191 2), 409, ff. 

^^ "For bays, the territorial sea follows Uie sinuosities of the coast, except that 



TERRITORIAL WATERS 201 

With the exception of the marginal sea or marine league, 
gulfs and bays, whose entrance is too wide to be commanded by- 
forts and shore batteries, usually belong to the open sea. This 
is also the case with such gulfs and bays as are surrounded by 
the land territory of more than one riparian State. In general, 
it may be said that the right of innocent passage and use applies 
to gulfs and bays as well as to the marginal sea, as far as private 
vessels or merchantmen are concerned, but that States need not 
admit foreign warships to these waters. 

196. (Ill) Straits. — As a rule, the same principles apply to 
stilts as to bays and gulfs. A strait dividing the land territory 
of a single State which is not too wide to be commanded by shore 
batteries ^' is territorial. But if such a narrow strait divides the 

it is measured from a straight line drawn across the bay at the place nearest the 
opening toward the sea, where the distance between the two sides of the bay is 
twelve miles in width, at least unless a continuous and secular usage has sanctioned 
a greater width." Art. 3 of the rules of the Institute, cited above. 

"In case of bays the three marine miles are to be measured from a straight line 
across the body of water at the place where it ceases to have the configuration and 
characteristics of a bay. At all other places the three marine miles are to be 
measured following the sinuosities of the coast." The Hague Tribunal in United 
States V. Great Britain (case of North Atlantic Coast Fisheries), in 4 ^4. /. (1910), 

98.3. 

There is considerable usage in favor of permitting exclusive fishery rights 
within a bay whose entrance does not exceed ten miles in width. Such stipu- 
lations are found in the Anglo-French Fishery Treaty of 1839, the Hague Convention 
of 1882 for the Regulation of Fisheries on the North Sea, and the project of the 
Anglo-American Treaty of 1888. See Imbart-Latour, La mer territoriale, 50-51 ; 
De Lapradelle, in 5 R. D. I. P. (1895), 265: and Pereb, 43-44. 

The claims of Great Britain to the "Narrow Seas'' and the "Kings Chambers " 
have probably been abandoned. See i Oppenheim, §§ 191 and 195, with notes 
on pp. 247 and 250. In any case they are no longer valid. 

The vague and shadowy claims to jurisdiction for domestic purposes over large 
portions of the Atlantic Ocean and Gulf of Mexico sometimes made by American 
publicists in behalf of the United States have been taken too seriously by Continental 
authorities. For the source of these misrepresentations, see i Kent, 30. 

" Examples are the British Strait of Solent, which divides the Isle of Wight from 
England ; the Dardanelles and the Bosphorus, which are Turkish waters ; and the. 
Russian Strait of Kertch, connecting the Sea of Azov with the Arctic OceEin. 

By a treaty in 1846 and* through subsequent acts, the United States and Great 
Britain claimed jurisdiction over the Strait of Juan de Fuca between Vancouver 
Island and the State of Washington, a channel which seems to have an average width 
of about fifteen miles. See i Moore, Digest^ § 133; and Hall (5th ed.), 157. See 
also I Moore, Int. Arbitrations, ch. 7. This appears to be the only exception to the 
rule stated in the text. 

In 1894 the Institute of Int. Law (see 13 Annuaire, p. 330, Art. 10) declared that 
the rules relating to the territorial sea (marginal sea and bays, cf, supra, p. 197 n.) 



202 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

land of two different States, it belongs to the territory of both^ 
the boundary Ime running through the mid-channel.^^ Foreign 
merchantmen have the right of innocent use and passage in 
territorial straits as well as in territorial bays, gulfs, and the 
marginal sea ; but foreign warships do not have this right unless 
the strait forms an international highway. 

If the strait forms an international highway, the right of 
innocent passage ^^ for foreign warships and merchantmen exists 
even in the case of straits which are less than six miles in width.^ 

apply also to straits whose width does not exceed twelve miles, with the following 
distinctions and modifications : 

"i. Straits whose shores belong to different States form part of the territorial 
sea of the riparian States, which exercise their sovereignty to the middle line. 

'^2. Straits whose shores belong to the same State and which are indi^)ensable 
to maritime communication between two or more States other than the riparian 
State, always form part of the territorial sea of such State, whatever the distance 
between the coasts. 

"3. Straits which serve as a passage from one free sea to another can never be 
closed." 

Straits actually subject to conventions or special usages are reserved from the 
operation of these rules. 

*^ Slightly adapted from Oppenheim (I, § 194), who cites the Lymoon Pass which 
separates the British island of Hong Kong from the Asiatic mainland as an histori- 
cal example. It was "half British and half Chinese as long as the land opposite 
Hong Kong was Chinese territory." 

** " In time of war, the territorial Power, if belligerent, may of course deal with 
the ships of the enemy as it pleases. The enemy will similarly exercise his bellig- 
erent right within the straits as elsewhere." Holland, Studies^ 278. 

*• In 1879 the United States declared that it would not tolerate exclusive claims 
to the Straits of Magellaxi. Art. 5 of the Treaty of 1881 between Chile and the 
Argentine Republic provides: "Magellan's Straits are neutralized forever, and free 
navigation is guaranteed to the flags of all nations." i Moore, Digest ^ § 154, p. 
664. See also Abribat, Le ditroil de Magellan (1902). It should be noted that the 
term "neutralized" as applied in this connection is somewhat of a misnomer. 

The Dardanelles and the Bosphorus, which form the entrance to the Black Sea, 
should be regarded as an exception to this rule. Their status is based on convention. 
According to a series of great international treaties, warships ''with a few exceptions) 
are not allowed to pass through these Turkish Straits, but merchantmen are expressly 
permitted to do so. The present rule dates from the latter part of the eighteenth 
century. The Treaty of iSog between Great Britain and Turkey expressly sanc- 
tioned the ancient rule of the Ottoman Empire forbidding all foreign warships from 
entering these waters. (As long as the Black Sea was wholly Turkish water, the 
Snltan had a right to prohibit merchantmen as well as war vessels from entering 
the Straits.) These stipulations were reaffirmed by the London Treaty of 1841, 
the Treaty of Paris of 1856, the London Conference of 187 1, and the Berlin Treaty of 
1878. 

1 his rule was evaded or violated by Russia during the Russo-Japanese War when 
she sent several cruisers belonj^ing to her Volunteer Fleet in the Black Sea through 
the Straits flying the commercial flag in the guise of merclantmen for the purpose of 



TERRITORIAL WATERS 203 

For such innocent use no tolls may be collected, even on the 
ground of immemorial usage sanctioned by treaties;^ although 
it is perhaps permissible to make necessary charges for the main- 
tenance of buoys, lighthouses, pilots, etc. 

197. (IV) Inland Lakes and Landlocked Seas. — It is univer- 
sally agreed that lakes and landlocked seas which are wholly sur- 
rounded by the land territory of a single State are territorial. 
And most publicists ^^ also agree that in the absence of special 
treaties,^ such lakes and seas as are wholly inclosed by the 
territory of more than one State belong to the territories of the 
various riparian States in proportional parts, the boundary line 
running through the middle of these bodies of water. But the 
use of such territorial waters is common to all the bordering 
States. 

198. (V) International Lakes and Seas. — International lakes 
and seas, i.e, such as are surrounded by several States and are at 
the same time connected with the open sea by a narrow navigable 
strait or channel, are also territorial ; but they should be con- 
exercising the rights of search and capture in the Red Sea. Hershey, Int, Law and 

Diplomacy of the Russo-Japanese War, 128 ff. and 148 ff. 

The United States has acquiesced in the exduaion of her warships from the straits, 
but refuses to recognize the legal validity of the nile. i Moore, § 134, pp. 
665 ff. 

On the Straits of Constantinople , see especially Bonfils (Fauchille), Nos. 449- 
503 ; * Gorianow, Le Bosphore et Ics Dardandle (1910) ; Holland, The Eastern Ques- 
tion, 225-227; •Mischet, La mer noire et les ditmits de Constantinople (1899); i 
Nys, 459-470: I Oppenheim, §§ 181 and 197; Schuyler, American Diplomacy, 
317-318; Wheaton, §§ 182, 191, with Dana's note iii. 

'^ Through the persistence of the United States, the Sound Dues levied from time 
immemorial on vessels and cargoes passing through the Sovind and the two Belts 
which form a passage between the North Sea and the Baltic, were abolished in 1857. 
They were redeemed by i)ecuniary indemnities. This topic, which is discussed at 
considerable length in most works on International Law, is now one of mere his- 
torical interest. 

On the Danish Sound Dues, see especially : i Moore, S 134 ; Schuyler, American 
Diplomacy, 306-316; Snow, American Diplomacy, 124-127; and Wheaton, §§ 
183-184, including Dana, note 112. 

" So far as known to the author, the following publicists are alone in claiming that 
such lakes and seas as are wholly inclosed by the territory of several States are free : 
Calvo, I, § 301 ; Caratheodory, in 2 Holtzendorff, 378; and Despagnet, No. 416. 

^ For examples of treaties which make a division of these seas and lakes 
between the riparian States, see i Oppenheim, § 179. 

*'The Caspian Sea is surrounded by Russia and Persia, but, by virtue of the 
treaties of Gulistan (1813) and Tourkmantschai (1828), it is subject practically 
to Russian control.'' i Moore, Digest, § 135. 



204 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

sidered free and open to all theworld,^ at least as far as merchant- 
men and international trade are concerned.** 

Thus, " so long as the shores of the Black Sea were exclusively 
possessed by Turkey, that sea might, with propriety, be con- 
sidered a mar^ c/ai^Mm; . . . but since the territorial acquisitions 
made by Russia, and the commercial establishments formed by 
her on the shores of the Euxine, both that Empire and the other 
maritime Powers have become entitled to participate in the 
commerce of the Black Sea, and consequently to the free navi- 
gation of the Dardanelles and the Bosphorus." ^ 

** Though the authorities are not agreed upon this point, such is the actual 
practice. 

Among the authorities who claim that international lakes and seas are neces- 
sarily free to all the world are the following : i Calvo, § 301 ; Catatheodory, in 2 
Holtzendorfify 378; Liszt (3d ed.), § 26, p. 206; 2 M^rignhac, 587; i Nys, 448^.; 
and I Rivier, 153 and 230. 

Oppenheim (I, § 180) and Ullmann (§ 88, p. 29, 2d ed.) admit that this is the 
actual practice, but deny that it has been established as a rule of International Law. 

** This does not, of course, apply to the coasting trade. 

'* Wheaton, f 182. Cf. Halleck (Baker's 3d ed.), p. 169. This principle is not 
admitted in respect to the Great Lakes of Ontario, Erie, Huron, and Superior 
(Lake Michigan is wholly within the territory of the U. S.) which are connected with 
the Gulf of the St. I^wrence by the St. I^wrence River. But the St. lAwrence 
River is not an international highway as much as are the Dardanelles and the 
Bosphorus. Besides, there are several important canals which render the connec- 
tion between the Great Lakes and the Gulf of St. Lawrence partly artificial. 

"At the time when the United States achieved independence the Great Lakes 
belonged exclusively to Great Britain. No other nation had any rights in or over 
them. By the treaty of peace of 1783 the lakes were divided between the con- 
tracting parties and the boundary fixed as running through the middle of the lakes 
and of the waterways connecting them. The United States and Great Britain thus 
shared thenceforth, to the exclusion of any claim whatsoever of a third nation, the 
territorial sovereignty over the lake waters, which had therefore been wholly British. 
. . ." Mr. Uhl, Acting Sec. of State, May 23, 1894. See to the same effect, Mr. 
Gresham, Sec. of State, Jan. 2, 1895, saying : *'The Department concurs in the view 
expressed by the Canadian Judge (McDougall in the case of the American vessel 
Grace) that the lake waters on either side of the international boundary line are 
under the exclusive municipal jurisdiction of the respective countries." i Moore, 
Digest, § 137, pp. 673 and 675. 

For the international boundary in the Great Lakes, see i Moore, Int. Arbitra- 
iionSf chs. 5 and 6, and Vol. 6 for maps. 

On the meaning of the term "high seas" as applied to the Great Lakes, see x 
Moore, Digest, § 136, pp. 670 and 673. See especially United States v. Rodgers 
(1893), 150 U. S. 249, and Scott, Cases, 132-142. See also Hunt, in 4 A. J. (1901), 

285-313. 

*'In respect of the right of navigation, the lakes that separate the two countries, 

'.e. Lakes Ontario, Erie, Huron, and Superior, and their water communications, are 



TERRITORIAL WATERS 205 

199. ( VI) National Rivers. — It is generally * agreed that all 
streams lying wholly within the territory of a single State are na- 
tional in character and are subject to the exclusive jurisdiction of 
the State within whose boundaries they flow. When navigable, 
such rivers are usually open to the merchantmen of all nations 
so far as ifUemaUanal trade is concerned, but such freedom of navi- 
gation is a privilege rather than a right unless secured by treaty. 

200. (VII) International Rivers. — Navigable rivers which flow 
through or between several States into the open sea are called 
International Rivers. They are imdoubtedly territorial in the 
sense that such portions of these rivers as lie within the territory 
of a single State are subject to the jurisdiction of that State.^ 

Boimdary rivers belong to the States whose territory they 
divide, the boundary Une running, as a rule, either through the 
middle of the river or through the middle of the thalweg or 
navigable portion of the stream.* The use of boundary rivers is 
certainly common to all the co-riparian States. " Where a river 
forms the boundary between two countries, and the only access to 
the adjacent territories is through such river, the waters of the 
whole river must be considered as common to both nations, 
for all purposes of navigation, as a common highway." *• It 
should also be open to, the merchantmen of other nations for 
purposes of international trade.* 

treated as international waters, being dedicated in perpetuity to the common 
navigation of all the inhabitants." But this common right of navigation does not 
include the coasting trade. Lake Michigan is open to British subjects by treaty. 
I Moore, § 138, pp. 675-676. 

The Baltic Sea is an open aea, in spite of the fact that the entrances to it from the 
North Sea are controlled by Denmark and Sweden. Various more or less success- 
ful attempts to close it to foreign warships during war have been made by the 
riparian States, but this pretention has never been admitted by the other Powers. 
See, e.g, Bonfils, No. 504, and Wheaton, § 185. 

** A few publicists seem to be of the opinion that the principle of the freedom 
of navigation applies to navigable rivers generally. See, e.g. Despagnet, No. 
428. Bluntschli (Art. 314) erroneously asserts that "streams and navigable 
rivers which are in communication with a free sea are open to the vessels of all nations 
in time of peace." 

" The State does not ordinarily assert jurisdiction over the foreign vessel or 
its crew as long as their conduct does not affect the peace and comfort of the native 
inhabitants. It may not levy tolls for profit, but may collect charges for lights, 
buoys, dredging, and other incidental expenses. 

*« Cf. infra, § 165. «» i Moore, Digest, § 131, p. 627. 

•0 In the case of The AppoUon (9 Wheaton 362), it was held that " the mere tran- 



2o6 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

In respect to rivers flowing successively through or between 
several States to the open sea, the majority of the more recent 
authorities'^ are of the opinion that the State or States located on 
the upper waters of such rivers, have at least an imperfect right 
to the innocent use of their navigable portions, and this view is in 
accordance with modem practice.^ The right of innocent passage 

sit of a French vessel through the waters of a river which forms the boundary 
between the United States and the territory of a foreign State, for the purpose of 
proceeding to such territory, cannot be taken to subject the vessel to penalties 
imposed by the United States upon French vessels for entering their territory/' 
I Moore, op. cit. 

'' Allowing for a few corrections, the authorities are thus tabulated by i West- 
lake, 158-159: 

Those asserting the right of innocent passage : Bluntschli, § 314 ; Caratheodoryy 
in 2 Holtzendorff, § 60; Despagnet, §428; Fngelhardt, in 2 1^. Z>. /., 372 ; 2 Fiore 
No. 774; Geflfecken, in Heffter, § 77 ; Grotius, lib. II, cap. 2, § 13 ; Institute of Int. 
Law, Annuaire for 1 887-1 888, p. 182 (see also Tableau, 149); Pufendorf, lib. III^ 
cap- 3» n- S~8; i Rivier, 226; UUmann, § 105; Vattel, liv. II, § 130; Wheaton, } 
193. To this list should be added: i Halleck (Baker's 3d ed.), 173-174; Liszt 
(3d ed.), § 27, p. 216; I M^rignhac, 610 fif. ; and i Westlake 153-159. 

Those denying the right of innocent passage as a matter of strict law : i Calvo^ 
§§ 219, 293; Heffter, § 57; KlUber, iS 76, 135, i F. de Martens, § loi; G. dc 
Martens, § 84 ; i Phillimore, § 160; i Twiss, § 145. To this list should be added : 
Creasy, No. 233; Lawrence, (3d ed.), § 112; i Oppenheim, §178; Pomeroy^ 
§ 132; 2 P.-Fod6r6, Nos. 728, 749; and Woolsey, § 62. 

Bonfils (Fauchille), No. 5 24, simply says that '' the general tendency of the modem 
doctrine is favorable to freedom of navigation, subordinated to measures of precau- 
•tion and safeguard for the security of riparian States and in respect to their rights 
of jurisdiction, police, customs regulations," etc. 

*> The freedom of river navigation as a principle of public law is a modem doctrine. 
True it is that the " Roman law declared all navigable rivers to be so far public 
property that a free passage over them was open to everybody, and the use of their 
banks (jus liUoris) for anchoring vessels, lading and unlading cargo, and acts of 
the like kind, to be incapable of restriction by any right of private domain/' 
I Phillimore, § 155. But this was not a principle of International I^w. 

In the Middle Ages the idea of the public character of river navigation almost 
wholly disappeared. It was revived as a principle of the Law of Nations by Grotius 
(lib. II, c. 2, § 13), who proclaimed the doctrine of the freedom of navigation on 
rivers as well as on the open sea. The doctrine of the right of Innocent passage on 
rivers was more fully elaborated by Vattel (liv. II, §§ 104, 117, 123, 128-129, 134). 
But it was practically disregarded in international practice until the outbreak of 
the French Revolution. 

In November, 1792, the provisional Executive Council of France declared apropos 
of the Scheldt, which had been closed by the Treaty of MUnster in 1648, that 
" river courses are the common and inalienable property of all the countries irrigated 
by their waters ; that a nation cannot, without injustice, claim the exclusive right of 
occupying the channel of a river and prevent the neighboring peoples who inhabit 
its upper waters from enjoying the same advantage." Engelhardt (Du rigime con- 
ventionnei des fieuves inUrnationaux, 24), perhaps the leading authority on this sub- 



TERRITORIAL WATERS 207 

undoubtedly carries with it the incidental right to use the banks 
of such rivers for mooring, loading, and unloading cargoes, etc., 
provided such use is innocent and necessary. 



ject, considers this proclamation ''the first charter of contemporary fluvial liber- 
ties." A limited application of this principle was made by a number of treaties to 
which France was a party during the Revolutionary and Napoleonic period. 

The Grotian principle was also adopted by the allied Powers in Art. V of the 
Treaty of Paris of 1814 which proclaimed the freedom of navigation upon the 
Scheldt, and upon the Rhine "from the point at which it becomes navigable to the 
sea." In 181 5 the Powers represented at the Congress of Vienna declared that 
"those States which are separated or traversed by the same navigable river engage 
to regulate by common consent all matters relating to the navigation of this river." 
To this end they agreed to name a commission. Art. 108 of the Final Act of 
the Congress of Vienna. Art. 109 declared that "navigation on all rivers indi- 
cated in the preceding article, from the point where each of them becomes navigable 
to its mouthy shall be entirely free, and cannot, in respect to commerce, be pro- 
hibited to any one; it is understood, however, that one will conform to the 
regulations relative to the police of this navigation. These regulations shall be 
uniform for all and as favorable as possible to the commerce of all nations." 
See Engelhardt, in it R. D. I. (1879), 3^3 ff-; i Moore, Digifst^ p. 628; P.-Fodfr6, 
Nos. 740-744; I Phillimorc, 229-230 n.; S>chuyleTf Am. Diplomacy f $^5 ff,; i West- 
lake, 147 ; and Wheaton, History, 49^-506. 

" In order to assure the application of this principle, articles were inserted ex- 
pressly regulating in certain respects the free navigation of the Rhine ; and it was 
provided that 'the same freedom of navigation' should be 'extended to the Necker, 
the Main, the Moselle, the Meuse, and the Scheldt, from the point where each of 
them becomes navigable to their mouths.' And in order to 'establish a perfect 
control' over the regulation of the navigation, and to 'constitute an authority which 
may serve as a means of communication between the States of the Rhine upon all 
subjects relating to navigation, ' it was stipulated that a central commission should 
be appointed, consisting of delegates named by the various bordering States. ..." 
I Moore, p. 628. These articles form part of Annexe XVI to the Final Act of the 
Congress of Vienna. Some of the provisions of the Vienna agreements appear to 
have been rendered illusory on certain European rivers. 

The next important step was taken by the Congress of Paris in 1856. Articles 
15-17 stipulated that the principles established by the Congress of Vienna should 
apply to the Danube, and provided for the creation of two commissions composed 
of delegates from each of the interested Powers — a temporary "European" Com- 
mission to clear the mouths of the river and the adjacent seas from obstructions, and 
a permanent "Danube River" Commission to prepare regulations for navigation 
and river police, etc. In 1883 a new "Mixed Commission of the Danube" was 
created for the purpose of supervising the execution of the regulations made for 
the navigation of the river. The most noteworthy features of this Commission are 
that a majority of votes are sufficient for a decision, and that the Commission 
appears to form a distinct International Person, having the power of prescribing and 
enforcing penalties for the violation of its regulations. 

On the free navigation of the Danube, see especially * Bonfils (Fauchille), No. 
528; * Engelhardt, in 16 R. D. I. (1884), 360 ff.; 2 Fiorc, Nos. 790-794; Liszt, 
(3d ed), S 27, pp. 219-222 ; 2 M6rignhac, 619-625 ; * 1 Moore, Digest^ 630-631 ; 



2o8 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

20I. (VIII) Interoceanic Canals. — The same rules applicable 
to international rivers and straits should be applied to interna- 
tional canals, which are artificial waterways fonning an interna- 
tional passageway. The only permissible variation from these 
rules would seem to be that reasonable tolls may be collected 
to pay for the construction of the canal. 

2 P.-Fod6r6, Nos. 745-749 ; Schuyler, Am. Diplomacy ^ 352 ff. ; * UUmann (2d cd.), 
loSf PP- 335-338; I Westlake, 149-150- 

In 1884-1885 the Congo Conference of Berlin agreed upon the free navigation of 
the Congo and the Niger, together with their tributaries* and created the Inter- 
national Congo Commission as a special international ocgan similar to the Mixed 
Commission of the Danube for the regulation of the navigation of the Congo which 
was also neutralized, the regulations respecting the Niger being left to the enforce- 
ment of the coriparian States. For references, see Bonfils, No. 530, p. 310 n. of 
Sth ed. 

After Spain obtained control of both banks of the Mississippi River at its mouth, 
she claimed the exclusive right of navigation below the point reached by the south- 
em boundary of the United States — a claim strongly resisted by the latter Power 
on treaty grounds and*as forbidden by the Law of Nature and Nations. The dis- 
pute was terminated by the Treaty of 1795, which declared that the navigation of 
the Mississippi should be free to the United States as well as to subjects of the King 
of Spain. Through the subsequent acquisition of Louisiana and Florida by the 
United States, ^* the Mississippi ceased to be an international stream, and the right 
to control its navigation passed exclusively to the United States " (i Moore, Digest^ 
p. 265), although Great Britain put in a claim, which was based upon Article VIII 
of the Treaty of Peace (i 782-1 783), to the right of the free navigation of the river. 
This article declared that " the navigation of the river Mississippi, from its source to 
the ocean, shall forever remain free and open to the subjects of Great Britain and 
the United States." This right was granted, however, under the erroneous idea 
(as shown by Art. II of the same treaty) that the source of the Mississippi was in 
British or Canadian territory. The claim of Great Britain was afterwards ahan- 
doned. i Moore, p. 625. 

There was also a controversy in 1823 and 1826 between Great Britain and the 
United States respecting the right of the free navigation of the St. Lawrence. As 
in the case of the dispute with Spain, the United States based its claim mainly on 
the ^'general principles of the law of nature" — an argument whose validity was 
denied by Great Britain. It may be noted that Westlake (I, 154) admits that 
'*the American argument appears to have been well founded." The United 
States also urged that the St. Lawrence was analogous to a strait connecting navi- 
gable seas. 

" By Article IV of the Reciprocity Treaty of June 5, 1854, it was agreed that the 
inhabitants of the United States should have ' the right to navigate the river St. 
Lawrence, and the canals in Canada, used as a means of communicating between the 
Great Lakes and the Atlantic Ocean,' as fully and freely as British subjects, sub- 
ject only to the same tolls and assessments as the latter." The treaty of 1854 was 
terminated in 1866 in pursuance of a notice given by Congress. 

"By Article XXVI of the Treaty of Washington of May 8, 1871, it was declared 
that the navigation of the river St. Lawrence, ascending and descending from the 
45th parallel of north latitude, where it ceases to form the boundary between the 



TERRITORIAL WATERS 209 

From the standpoint of the Law of Nations, purely internal 
canals are wholly national,^ but international canals, or those 
forming a passageway for international traffic, while territorial 
and therefore imder the control and jurisdiction of the State in 
which they lie, should be open to the warships as well as mer- 
chantmen of all nations for purposes of innocent use. 

These principles should govern in the absence of treaties, 
but they have as a matter of fact been applied by convention in 
the cases of the two great interoceanic Canals of the Suez and 
the Panama.^ Both of these Canals are declared '' free and open " 
on terms of equality to warships and merchantmen of all nations.^ 

two countries, from, to, and into the sea, shall forever renuun free and open for the 
purposes of commerce to the citizens of the United States, subject to any laws and 
regulations of Great Britain, or of the Dominion of Canada, not inconsistent with 
such privilege of free navigation." On the other hand, it was reciprocally provided 
that the navigation of the rivers Yukon, Porcupine, and Stikine in Alaska should 
be free and open for purposes of commerce to the subjects of Great Britain as well 
as to citizens of the United States. 

"By Article XXVII of the same treaty the British Government engaged to urge 
upon that of Canada to secure to the citizens of the United States the use of the Well- 
and, St. Lawrence, and other canals in the Dominion on terms of equality with its 
inhabitants ; and the United States engaged to grant to British subjects the use of 
the St. Clair Flats Canal on terms of equality with the inhabitants of the United 
States,** etc. See i Moore, Digest , § 131, pp. 634-635, for the citations and facts 
given above. 

On the navigation of the Mississippi and the St. Lawrence, see especially : * i 
Am. State Papers, 253-259, and 6 Ibid., No. 464, pp. 757-777; i Cobbctt 116- 
120; Hall (6th ed.), 132-133; *! Moore, §§ 130-131; i Phillimore, §§ 160, 
169-170; Pomeroy, §§ 133-134; * Schuyler, Am. Diplomacy, 264-291; Snow, 
Cases, 33-40; I Westlake 151-155; Wheaton, §§ 220-205, and Dana's note 118; 
WooLsey, § 62, pp. 81 and 82. 

The Argentine Confederation declared the navigation of the rivers Parana and 
Uruguay open to merchantmen of all nations in 1852. In 1867, after a prolonged 
resistance, Brazil finally opened the Amazon and its tributaries to the merchant 
ships of all friendly States. The Orinoco does not appear to be wholly free. 

On South American Rivers, see especially i Calvo, §{ 323-332; 2 M6rignhac 
630-632; * I Moore 540-653; 2 P.-Fod^, No. 753; * Schuyler, Am. Diplomacy, 
319-344. 

" An example of such a canal would be the Erie Canal in New York State. 

** The Emperor William or Kiel Canal which connects the Baltic with the North 
Sea is open to the vessels of all nations, but it is regarded by Germany as purely 
territorial, having been built for strategic rather than commercial purposes. The 
Corinth Canal is of secondary importance. It connects the Gulf of Corinth with 
the i£gean Sea. Yet it is difficult to see why the principles governing international 
straits should not be applied to these Canab. 

*• Cf. Art. I of the Convention of Constantinople (1888) and Art. 3 § i of the 
Hay-Paimcefote Treaty of 1901. The latter significantly omits the phrase, 'in 
p 



2IO ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

Neither are to be blockaded — a purely conventional stipulation 
which does not apply to natural straits — nor shall any act of war 
or hostility be committed within either * 

'' Vessels of war of a belligerent shall not revictual nor take 
on stores in the Canal except so far as may be strictly necessary ; 
and the transit of such vessels through the Canal shall be effected 
with the least possible delay in accordance with the regulations 
in force, and with only such intermission as may result from 
the necessities of the service. Prizes shall be in all respects 
subject to the same rules as vessels of war of belligerents. 

" No belligerent shall embark or disembark troops, munition 
of war, or warlike material in the Canal except in case of acci- 
dental hindrance of the transit, and in such case the transit shall 
be resumed with all possible dispatch. 

time of war as in time of peace " contained in the former. It would seem from this 
that the United States reserves to itself the right to close the Panama Canal during a 
war, if necessary. Of course such a power will never be exercised except for pur> 
poses of self-protection. It is not likely that foreign warships, except those of an 
enemy, will ever be excluded from the innocent use of the Canal. Sect. 3 of Art. x 
contemplates the transit of the Canal by warships of a belligerent. 

** This, of course, includes the marine league. The Treaty of Constantinople 
(Arts. 8 and 11) also forbids the "erection of permanent fortifications." "The 
United States, however, shall be at liberty to maintain such military police along the 
Canal as may be necessary to protect it against lawlessness and disorder." Art. 
I, § 2, of the Hay-Pauncefote Treaty. 

The first draft of the Hay-Pauncefote Treaty (which was rejected by the Senate), 
as also the treaty as amended by the Senate (which was rejected by Great Britain), 
contained a clause declaring that "no fortifications shall be erected commanding 
the Canal or the waters adjacent." This clause, which had also formed part of the 
Clayton-Bulwer Treaty of 1850 (now superseded), was omitted in the second Hay- 
PauAcefote Treaty at the suggestion of Great Britain, on the ground that it was not 
in harmony with the clause cited above, and might give rise to grave misunder- 
standing. 

This omission appears to leave the question open, but there can be little doubt 
that the United States possesses the right to fortify the entrances to the Panama 
Canal. Surely this would be the case if it were a natural strait. Any limitation of 
this right must rest upon convention. That clause of the Clayton-Bulwer Treaty 
prohibiting fortification is certainly not in force. Art. 2 of the Hay-Pauncefote 
Treaty distinctly states that the Government of the United States "shall have and 
enjoy all the rights incident to such construction (of the Canal), as well as the 
exclusive right of providing for the regulation and management of the Canal." 
Art. 23 of the Treaty of 1903 with Panama expressly grants the right of fortifica- 
tion to the United States. 

For an able argument against the fortification of the Panama Canal, see Hains, 
in 3 il. /. (1909), 354-394- For a reply, see General Davis, in Ibid.j 885-908. See 
also Knapp, in 4 i4. 7. (1910) 324-358. For the treaties and documents bearing 
on this interesting subject, see Supplement to $ A. J., 106 fif., especially 123-139. 



TERRITORIAL WATERS 211 

'^ The provisions of this article shall apply to waters adjacent 
to the Canal, within three marine miles of either end. Vessels of 
war of a belligerent shall not r^nain in such waters longer than 
twenty-four hours at any one time, except in case of distress, and 
in such case, shall depart as soon as possible ; but a vessel of war 
of one belligerent shall not depart within twenty-four hours from 
the departure of a vessel of war of the other belligerent. 

'' The plant, establishments, buildings, and all work necessary 
to the construction, maintenance, and operation of the Canal, 
■shall be deemed to be part thereof, for the purpose of this 
treaty, and in time of war, as in time of peace, shall enjoy com- 
plete immunity from attack or injury by belligerents, and from 
acts calculated to impair their usefulness as part of the Canal."'' 

It may be observed that these provisions are intended to secure 
tiie neutrality and open use of these great interoceanic canals. 
This neutrality is not effectively guaranteed ; and they cannot 
be said to be luHy neutralized,^ inasmuch as the transit of friendly 
belligerent warships is permitted. The so-called neutralization 
of the Suez Canal is strengthened by an agreement of the leading 
Powers of Europe ; ^ that of Panama by a treaty between the 

'^ Art. 3, §S 3-^ of the Hay-Paunccfotc Treaty. Except for a part of the last 
paragraph, t-hese sections are substantially identical with Arts. 2-6 of the Treaty 
of Constantinople. 

** To use a happy phrase of Lord Cromer's, they are intemalionalized rather than 
neuiralized. Lord Cromer (2 Modem Egypt^ 384) cites Lord Pauncefote as saying 
that the word '* neutralization " as applied to the Suez Canal '*had reference only to 
the neutrality which attaches by International Law to the territorial waters of a 
neutral State, in which a right of innocent passage for belligerent vessels exists, 
but no right to commit an act of hostility." 

'* Art. 10 of the Treaty of Constantinople recognizes the right of the Sultan ot 
Turkey and the Khedive of Egypt to take such measures as they "might find it 
necessary to take for securing by their own forces the defense of Egypt, and the 
maintenance of public order." Such measures had indeed been taken by England 
in 1882 when she crushed the revolt under Arabi Pasha — an insurrection which 
resulted in her "temporary " occupation of Egypt. \t a Paris Conference in 1885 
the British delegates formulated a general reservation as to the application of the 
provisions proposed in so far as they "might fetter the liberty of their Government 
'during the occupation of Egypt by the forces of Her Britannic Majesty." In 
1887 this reservation was renewed by Lord Salisbury. In 1898 Lord Curzon declared 
in the British House of I^rds that, owing to these reserves, the Convention of Con- 
stantinople had not been brought into practical operation." By Art. 6 of the Anglo- 
French Declaration of April 8, 1904, respecting Egypt and Morocco, Her Majesty's 
Oovemment declared that they adhere to the stipulations of the Treaty of Oct. 
29, 1888, and that they agree to their being put in force." Westlake, 328-329. 



212 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

United States and Great Britain. But the main provisiona 
of these conventions may also be said to constitute rules or 
principles of the Law of Nations which would operate even in the 
absence of such agreements. 

BIBUOGRAPHT 

Interoceanic Canals. — Asser, in 20 R,D. I, (1888), 529 ff.; ^Bonfils 
(FauchiUe), Nos. 411-515 ; Bry, No. 138 ; Bustamante, 27 in R. Z>. /. (1895), 
1 1 2 £P. and 223 ff. ; i Calvo, §§ 376-380, and 6 Ibid.^ §§ 14 ff. ; * Caratheodory, 
in 2 Holtzendorff 386-406 ; Cromer, 2 Modern Egypt, eh. 47, pp. 382-387 ; 
Davis, in 3 -4. y. (1909), 885-908 ; Fauchille, Blocus marUime (1882), 184 ff. ; 
Freycinet, La question d* Egypt (1904), ch. 2, pp. 99-204; Haines, in 3 
A.J, (1909), 354-394; * Henderson, in Am. Diplomatic Questions, 65-201 ; 
Holland, Studies, 270-298; Imbart-Latour, Le mer territoriale, 66-118; 
Johnson, Four Centuries of the Panama Canal (1906) ; Keasbey, The 
Nicaragua Canal and the Monroe Doctrine (1896) ; Latan6, The Diplo- 
matic Relations of the United States and Spanish America, 176-220; Law- 
rence, Principles (3d ed.), § no; Ibid. (4th ed.), §90; * Ibid., Essays, 41- 
162 ; Liszt (3d ed.)^ § 27, pp. 223-226 ; 2 F. de Martens, § 59 ; 2 M6rignhac, 
597-605; *2 and 3 Moore, §§ 178, 336-371; *i Nys, 475-495; i Oppen- 
heim, §§ 182-184; 'Ptnfitl^, Present-4ay Egypt (1899), ch., pp. 184-217; 
Pensa, La republique et le canal de Panama (1906) ; i Phillimore, §§ 99 a 
and 207 flF. ; 2 P.-Fod6r6, Nos. 658-660; i Rivier, 231-233; Rodrigues, 
The Panama Canal (1885) ; Twiss, in 7 ^. Z>. /. (1875), 652 ff. ; Ibid., in 14 
R. D. /. (1882), 572 ff. ; Ibid.y in 17 R. D. I. (1885), 615 ff. ; UUmann (2nd 
ed.), § 106 ; Viallate, in 10 R. D. I. P. (1903), 5 ff. ; Ibid., inn R.D. I. P. 
(1904), 481 ff. ; * Ibid., Essais d^histoire diplomatiques americaine (1905), 
57-206; *i Westlake, ch. 15, pp. 320-331; 2 and 3 Wharton's Digest, 
§§ 150 f. and 287 ff. ; Whitely, in 33 R. D. I. (1901), 5 ff. ; Wilson, § 40. 

For further references, see Bonfils (Fauchille's sth ed.), pp. 295 and 297. 
For Bibliography of 160 pages on '^ Interoceanic Canals and Railway Routes,'' 
see List of Books and of Articles published by the Library of Congress (1900). 

Marginal Sea or Marine League. — *BIuntschli, Arts. 302, 309-310; 
Bonfils (Fauchille), Nos. 491-494; Bry, Nos. 130-132; * Bynkershoek, 

Westlake adds, however, *' But whether with or without an express reservation, it 
must be considered that, in future as in 1882, rules having the freedom of the Suez 
Canal for their object cannot be interpreted as hindering the protection of that 
freedom by the Power best able to give it, in good faith and with no avoidable dis- 
turbance of commerce." 

The control of the Suez Canal by Great Britain rests partly upon her occupation 
of Egypt and partly upon her ownership of nearly half of the shares in the Suez 
Canal Co. ; that of the United States over the Panama Canal upon the construc- 
tion and ownership of the Canal, and upon the "grant in perpetuity" by the Repub- 
lic of Panama of " the use, occupation, and control of a zone of land, and land under 
water" of the width of ten miles in the Isthmus of Panama. Art. 2 of Treaty of 
1903. See Supplement to 3 ^. 7. (1909), 130. 



TERRITORIAL WATERS 213 

De daminio maris (1702), c. 2, and Questiones juris pMici, I, c. 8; i 
Calvo, §§ 353-367 ; I Cobbettj Cases (sd ed.), 132-140; Creasy, Nos. 
241-246; *Deq>agiiet, Nos. 412-414; 2 Fiore, Nos. 801-807; * Fulton, 
The Sov, of the Sea (191 1), sect. II, pp. 535 ff. ; Godey, La mer cdiiire; 
Grotius, lib. II, c. 3, § 13; Hall (5th ed.), 151-154, 158^-159; i Halleck 
(Baker's 3d ed.), 157-165; i Hautefeuille, 51-60; Heilborn, 5y5<ei»f, 37- 
57; Heffter, § 75; * Imbart-Latour, Le mer territariale (1889), 20-38; i 
Kent, 29-31 ; Liszt (3d ed.), § 9, pp. 80 ff. ; Lawrence (3d ed.), §{ 91, 107 ; 
Ibid., (4th ed.), § 72 ; iF.de Martens, § 98 ; 2 M^rignhac, 370-392 ; * i 
Moore, Digest, $§ 144-152; i Nys, 497-522; *i Oppenheim, §§ 185-190; 
I Ortolan, 153-162; Perels, § 5; i Pi6delj^vre, Nos. 386-402; i Philli- 
more, §§ 197-198; Pomeroy, §§ 150-155; 2 P.-Fod6r6, Nos. 617-639; 
*i Rivier, 145-153; *Stoerk, in 2 Holtzendorff 409-453; Taylor, §§247- 
250; I Twiss, §§ 190-192; Schiicking, Das KUstenmer (1897); * Queen v. 
Keyn, in Scott's Cases, 154-170; Ullmann (2d ed.), § 87, pp. 290 ff. ; 
*Vattel, liv. I, §§287-290; * Walker, Jfanwe/, §17, and Science, 171-175; 

1 Westlake, 183 ff. ; 1 Wharton, Digest, § 32; Wheaton, §§ 177-180, 189; 
Wilson, §§ 35-40; Woolscy, §§ 56-57- 

Lakes, Seas, Gulfs, Bays, Straits, etc. — Bluntschli, Arts. 304-310; 
^Bonfils (FauchiUe), Nos. 495-511, 516-519; *Bry, Nos 133-137, 139- 
141; I Calvo, §§301,366-375; * Caratheodory, in 2 Holtzendorff, 378- 
385; 1 Cobbett, 140-153; Creasy, No. 240; Despagnet, Nos. 414-416, 
424-427; 2 Fiore, Nos. 746-754, 802-815; HaU (6th ed.), 154-157; 1 Hal- 
leck (Baker's 3d ed.), 165-170; Heffter, §§76-77; * Imbart-Latour, 39- 
65; Lawrence (3d ed.), §§ 91, 107-109; Ibid., (4th ed.), §§ 72, 87-89; 
Liszt (3d ed.), § 9, 26-27 > iF.de Martens, §§ 99-100; G. F. de Martens, 
§§ 39-41; 2 Mdrignhac, 393-398, 587-597; *i ^ooxt. Digest, §§134-143, 
153; *i Nys, 437-474; 1 Oppenheim, §§179-181, 191-197; Ibid., in i 
Zeitschrift (1906) ; i Ortolan 140-152, 579-587 ; Perels, § 5; * 1 Phillimore 
§§ 180-206; 1 Pi6deli^vre, Nos. 403-418; Pomeroy, §§ 139-149, 155-157; 

2 P.-Fod6r6, Nos. 640-657, 661-681; *i Rivier, 143-144, 153-159, 230; 
*Scott, CaseSy 132-154; Snow, Cases, 41-55; Stoerk, in 2 Holtzendorff, 
419-428; Taylor, §§ 229-231; i Twiss, §§ 181-184, 189; Ullmann (2nd 
ed.), §§ 88, 106 ; * 1 Westlake, 187-197 ; Walker, Manual, §§ 17-18 ; i Whar- 
ton, Digest, §§ 27-29 ; Wheaton, §§ 181-190 ; Wilson, §§ 36-38, 40 ; Woolsey, 
§§60^1. 

Free Navigation of Rivers. — Bluntschli, Nos. 311-315; *Bonfils 
(FauchiUe), Nos. 520-530; Bry, Nos. 143-157; 1 Calvo, §§ 302-340; 
I Cobbett's Cases (3d ed.), 116-124; * Caratheodory, in 2 Holtzendorff, 
279-377; Despagnet, Nos. 428-430; *Engelhardt, in 16 R, D, /. (1884), 
360 ff. ; Ibid,,De rigime conventionnel des fleuves int. (1885) ; Ibid., Histoire 
du droit fluvial conventionnel (1889) ; 2 Fiore, Nos. 755-797 ; Grotius, lib. 
II, c. 2, §§ 11-15 ; .Hall (6th ed.), 131-140 ; 1 Halleck (Baker's 3d ed.), 171- 
179; Heffter, § 77; Lawrence (3d ed.), § 112; Ibid., (4th ed.), § 92; 
*Liszt (3d. ed.), § 27, pp. 216-223 ; i and 2 F. de Martens, §§ loi, 157 ; 2 
M6rignhac, 605-632 ; * 1 Moore, Digest, §§ 1 30-1 31 ; Neumann, §§ 22-23 ; 
I and 2 Nys, 423-437 and 109-131 ; i Oppenheim, §§ 176^x78; * i Phil- 



214 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

limore, §§ 1 55-171; Pomctoy, §S 129-138; 2 P.-Fod6rd, Nos. 682-747; i 
Pi6delievre, Nos. 376-384; *i Rivier, 142, 221-229; * Schuyler, Am. 
Diplomacy f 265-366; Snow, Cases, 32-41; Taylor, §§ 233-241; i Twiss, 
§ 145; *Ullmaim (2d ed.), § 105; Vattel, liv. II, §§ 123-134; * i West- 
lake, ch. 7, pp. 142-159; I Wharton, Digest, §30; *Wheatoii, §{192- 
205 ; Ibid,, History, 498-517 ; Wilson, §§ 39» 4o; Woolsey, § 62. 



CHAPTER XIV 
the opbn ssa 

The Fbeedom of the Open Sea 

202. ESstory of the Freedom of the Open Sea. — During An* 
tiquity and the early Middle Ages, the open sea was theoretically 
free and common to the use of all mankind,^ though by no means 
free from depredation by pirates even under the rule of the 
Roman Empire. But owing to the universal prevalence of 
piracy and the revival of commerce during the Later Middle Ages, 
the leading maritime States of Europe claimed territorial juris- 
diction over adjacent seas. Thus Venice and Genoa respectively 
laid claim to the Adriatic and the Ligurian Seas, Portugal re- 
garded herself as sovereign over the whole of the Indian and the 
southern portion of the Atlantic Ocean, and Spain preferred the 
modest claim of sovereignty over the Pacific Ocean and the 
Gulf of Mexico. Sweden and Denmark were apparently satisfied 
with the Baltic and the Arctic regions, but England claimed the 
Narrow Seas, the North Sea, and the Atlantic from Cape Finis- 
terre in Spain to Stadland in Norway. 

These enormous pretentions led to a great controversy* on the 

1 This was at least the view of the Roman jurists, who are supposed to have 
derived the doctrine from the Rhodian Laws of the Sea. 

* Thus Gentilis defended the Spanish and English claims in a work entitled 
Advocatio Hispanica (16x3). In the same year William Welwood defended the 
English claims in a work entitled De dominio maris. In 1635 Sir John Burroughs 
published his Sovereignty of the British Seas, In 1676 Sarpi published a book in 
defense of the claims of Venice to the Adriatic. The work of Grotius written in 
behalf of Holland was directed against the exorbitant claims of Portugal. Selden's 
work (published in 1635) , was an official defense of the claims of England to the 
northern seas. I Oppenheim, § 250. See Nys, Les origines, 379-387» for additional 
Information regarding this great controversy. 

Very interesting is the reply of Queen Elizabeth to the Spanish envoy Mendoza 
who complained (in 1580) of the intrusion of English vessels in East Indian waters. 

215 



2i6 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

freedom of the sea to which the most notable contributions were 
the Mare liberum by Hugo Grotius, in 1609, and the Mare clau- 
sum by John Selden, written in 1618 but not published before 
1635. The main contention of Grotius was that the sea is by 
nature incapable of appropriation or occupation. This was 
denied by Selden, who claimed that portions of the sea had 
actually been appropriated, especially by England. 

The final victory for the freedom of the open sea may be said 
to have been won' by 1824, when Great Britain* joined with the 
United States in protesting against the claim of Russia to the 
exclusive use of the waters of the Behring Sea within 100 Italian 
miles of the Alaskan and Siberian coasts, or islands belonging 
to Russia.* 

The great queen refused to admit any right in Spain to debar her subjects £iom trade, 
or from " freely navigating that vast ocean, seeing the use of the sea and air is com- 
mon to all ; neither can a title to the ocean belong to any people or private persons, 
forasmuch as neither nature nor public use and custom permitteth any possession 
thereof." Cited by Hall (6th ed.), p. 143. 

' Spedal mention should be made of the important book by Bynkershoek, De 
dominio maris y published in 1702. 

* In the early part of the nineteenth century, Great Britain had silently dropped 
her claim that foreign vessels should " strike their topsail and take in their flag, in 
acknowledgment of His Majesty^s sovereignty within His Majesty's seas " (which 
were supposed to extend to Cape Finisterre). Cited by Hall, (6th ed.), 147 ; and i 
Oppenheim, § 249. 

* This claim, abandoned by Russia in 1824, was afterward (1886-1893) partly 
revived by the United States in respect to the seal fisheries ; but it is a mistake to 
assert, as has frequently been done, that the United States Government based its 
claim mainly on the right of mare clausum. 

True, this was the view taken by Judge Dawson of the District Court of Alaska 
(the Onward f etc.), and Chief Justice Fuller assumed (in the Saytvard case) that the 
seizures were made on the ground of mare clausum ; but Mr. Phelps (our minister 
at London) admitted that this so-called right was not applicable to the case, and 
Secretary Blaine, referring to the mare clausum^ declared : " The Government has 
never claimed it and ne\er desired it. It expressly disavows it." i Moore, 
Dif^cst, § 903. His main argument was that the Canadian vessels which bad been 
seized and confiscated were engaged in a pursuit that was in itself contra honos mores j 
though in one of his notes to Lord Salisbury, he also asserted for the United States 
a claim to jurisdiction derived from Russia north of the 6oth parallel of north 
latitude. 

The main argument of the United States was, however, that of property in the 
seals and consequent right of protection on the high seas. This claim was based 
on the well-known fact that the seals habitually resort, for breeding purposes, to 
the Pribyloff Islands, belonging to the United States, from whence they go out on the 
high seas in search of food, and to which they regularly return during successive 
years. 

The Court of Arbitration, to which all questions relating to the controversy were 



THE OPEN SEA 217 

203. The Fteedom of the Open Sea. — It may, therefore, 
now be regarded as a universally accepted rule of International 
Law that the open sea' is free for the common use of all nations. 
Being practically insusceptible of effective occupation, it cannot 
be appropriated by any sovereignty or subjected to any juris- 
diction; being indispensable for free intercourse, more par- 
ticularly as an international highway, it is free and common to 
all. It is not so much res mdlius as res communis omnium. 

The freedom of the open sea has three main practical conse- 
quences : 

204. (i) The Right of Free Navigation. Collisions. — The 
right of free navigation has certain necessary restrictions. For 
example, to prevent collisions, certain regulations respecting signs, 
signals, etc., are prescribed and observed.^ But these derive 

referred, decided (in 1893) in favor of Great Britain on all points ; but, for the better 
safeguarding of the -seal-s, it drew up a series of rules which have unfortunately 
remained largely ineffective, owing mainly to the failure of Japan and Russia to 
agree to similar regulations. 

On the Behring Sea Controversy y see Barclay, in 25 R, D. /., 417 ff.; *Bonfils 
(Fauchille), Nos. 505 and 965 (sec p. 291 of 5th ed. for references) ; i Cobbett, 124 flf. ; 
Gefifcken, in 22 R. D. /., 230 ff., and 53 Fortnightly Rev., (1890), 741 ff. ; Engelhardt, 
in 26 R. D. /., 388, and 5 R, D. I. P, (1899), 193 and 347 ff. ; • Henderson, in Am. 
Diplomatic Questions, 3-61; Lawrence, Principles (3d ed.), § 106; Ibid. (4th ed.), 
§ 86; Knott, in 27 Am. Law. Rev., 684 ff.; *! Moore, Digest, § 172; F, de 
Martens and Renault, in i R. D. /. P. (1894), 32 ff. and 44 ff. ; * Snow, Cases, 521- 
528, and Am. Diplomacy, 471-509; Scott, Cases, 443-449* for the case of La Ninfa; 
Walker, Science, 175-204. 

For good brief accounts of the History of the Freedom of the Open Sea, in inter- 
national theoiy and practice, see Bonfils (Fauchille), Nos. 573-576; * Hall (6th ed.), 
140-151; 2 Nys, 135-139; and i Oppenheim, §§ 248-251. For a complete ac- 
count of the Behring Sea Controversy, see the Proceedings of the Tribunal 
Arbitration at Paris (1895) in 15 vob. 

• The open sea (or "high seas") has been well defined as "the ocean, and all 
connecting arms and bays or other extensions thereof, not within the territorial 
limits of any nation whatever." Field, Code, Art. 53. 

It includes such bodies of partially land-locked water as the Black Sea and the 
Sea of Marmora, which are connected with the open sea by navigable straits open 
to international navigation ; but it does not include the Sea of Azov, which, though 
connected with the Black Sea by a navigable strait, b considered Russian territory. 
I Oppenheim, § 252. 

' Such regulations are found in the laws of most countries, e.g. the British Mer- 
chant Shipping Act of 1873, the French Regulations of 1897, and the Regulations 
decreed by the Belgium King m 1850 which have been adopted by various maritime 
States. For the French text of these rules, see Perels (French trans., 1884), 373-380. 

The Institute of International Law adopted a *' Project for a Uniform Law of Mari- 
time Collisions " in 1888. See Tableau, 91-93. The first rule is that if a collision has 
been caused by a fault, damages fall upon the ship on board of which the fault has 



2i8 ESSENTIALS OF INTERNATIONAL PUBUC LAW 

their origin and sanction from municipal rather than Inter- 
national Law. 

205. (2) Free Fishing on the Hig^ Seas. — Freedom of fishing 
on the high seas — a right which can only be limited throu^ 
an international servitude* or by treaty. Thus, the fisheries 
on the North Sea are regulated by the Hague Convention of 1882/ 
and the Tribunal which arbitrated the Behring Sea Controversy 
adopted a series of regulations which were intended to prevent 
the extermination of the seals in that region.^^ 

206. (3) Submarine Cables. — The right of laying and protect- 
ing submarine cables. In accordance with a wish expressed by 
the Institute of International Law in 1879 " ^^^ ^^ destruction 



been committed. In 1889 a Conference of leading maritime States met at Washing- 
ton to consider this subject. Its discussions have had a great influence iqx>n subse- 
quent legislation. 

On CoUisionSf see especially : ^ Bonfils (Fauchille), Nos. 57S-580 ; ^ Bry, No. 180 ; 
2 Fiore, Nos. 740-742 ; 2 M6rignhac, 523 flF. and 552 ; 2 Nys, 171-174; 1 Oppenheim» 
§ 265 ; Perels, §§ 19-20 and pp. 373 ff. ; 5 P.-Fod6r*, Nos. 2362-2375. 

For the text of an '* International Convention for the Purpose of Establishing 
Uniformity in Certain Rules Regarding Collisions/' see Supplement to 4 A, J. 
(1910), 1 21-125. For valuable editorial comment, see 4-6 i4. /. (1910-12), 412 
ff., 192 f., and 488 ff., respectively. 

It has been claimed that there is an international legal obligation of assistance in 
case of collision, shipwreck, etc. There is undoubtedly a strong moral obligation, 
and some countries, e.g. the United States, France, and England, have made it a 
legal obligation in municipal law. 

" Thus, until 1904, the French claimed to have an international servitude in the 
fisheries upon the banks of Newfoundland. 

* See Bonfils, No. 582 ; i Oppenheim, § 282 ; and 5 P.-Fod^6, Nos. 2457-2458. 

'^ See supra, note on p. 216. For the text of these regulations, which unfortu- 
nately have not been adopted by the other Powers, excepting Italy, see i Moore, 
Digest, § 172, pp. 914-916. 

On Fishery Rights on the Open Sea and in Territorial Waters (with special refer- 
ence to the N. E. Fisheries), see • i Cobbett, 153 ff.; Elliot, The U ^ , and the N ,E. 
Fisheries (1887) ; Isham, The Fishery Question (1887) ; • Lawrence, Principles (3d 
ed.), § III ; • 1 Moore, Digest, §§ 163 ff. ; • U.S. v. Great Britain (1910 — case of 
Atlantic Coast Fisheries, in 4 A. J., 218-274, 948 ff.). 

A very curious exception to the rule laid down in the text is the British pearl 
fishery off Ceylon which extends to a distance of twenty miles from land. This is 
a '^ claim to the products of certain submerged portions of land which have been 
treated from time immemorial by the successive rulers of the island as subjects of 
property and jurisdiction." Hall, Foreign Jurisdiction of the British Crown, 243 
n. Westlake (I, 186) regards it as "an occupation of the bed of the sea." On the 
question whether the bed of the sea can be occupied, see Oppenheim, in 2 Zeiischrift, 
1-16; I Piggott, Nati^mality, 25-28; and Robin, in 15 R, D. I. JP. (1908), 50 ff. 

'* Tableau, 86; or 4 Annuaire, 394. 



THE OPEN SEA ^ 219 

or injuring of submarine cables on the high seas be declared 
an international delinquency, a Conference at which 26 States 
were represented met at Paris in 1884 and signed a Convention 
which placed submarine cables under the collective guarantee 
of the Powers. According to the terms of this Convention, 
the rupture or injury of a submarine cable, whether due to 
volimtary action or to culpable negligence, is punishable by 
the laws and courts of the State to which the offending party 
belongs." 

II. Jurisdiction Over Vessels 

207 Nationality of Ships. — The main objects of International 
Law on the high seas are ships, which are under the jurisdiction 
and protection of the State whose flag they fly and under the 
laws of which they are registered. Each State with a maritime 
flag stipulates the conditions under which vessels may obtain a 
certificate of registry or other document, such as a passport, sea- 
letter, etc., entitling them to the protection of her flag.^' 

^ Arts, 2, 8, and 12 of the Convention of 1884. Art. 15 is brief, but its imi)or- 
tance has been overestimated. It reads : ''It is understood that the stipulations of 
this convention shall in no wise afifect the liberty of action of belligerents." This 
has been interpreted as giving unlimited freedom of action to belligerents in time of 
war, but it cannot free them from their general neutral obligations. See infra , 

§ 397- 

For the text of this treaty, see i Martens, N, R. G., 2d series, 281. For a good 
summary, see Bonfils, No. 583. 

On Submarine Cables , see ^ Bonfils (FauchiUe), No. 583 ; Bry, No. 184; 2 Fiore, 
No. 822; ^Jouhannaud, Les cdbles sous-ntarines (1904); 2 M6jignhac, 532-535 ; 
2 Nys, 170 f. ; * I Oppenheim, § 286; Perels, 75 fF; Poinsard, Etudes de droit int. 
conventionnel, 5$-^; 5 P.-Fod^^, No. 2548; * Renault, in 12 and 15 R. D. /., 
251 ff. and 619 S. ; 1 Rivier, 386-387 ; Roper, Die Unterseekabel (1910) ; Stoerk, in 
2 Holtzendorff, 507 f. ; ^ Wilson, Submarine Telegraphic Cables (1901). 

" Without such flag as evidenced by her papers, a merchant vessel is entitled to 
no protection whatever. Nor is she entitled to protection if she sails imder the 
flags and registry of more than one State. The other papers or documents usually 
required are the muster roll, the log book, the manifest of the cargo, bills of lading, 
and the charter party or contract between the owner and the one chartering the 
vessel. 

In case of a warship, the word of the commander is usually held to be sufficient 
to establish the nationality of the vessel. In any case, the production of his com- 
mission would be conclusive evidence. 

For detaik respecting conditions of nationality, ships, papers, etc., see Hall 
(3d ed.), Appendices i and 2; Holland, Manual of Naval Prize Law, Nos. 178- 
194; * 2 Moore, §§ 321-328; 5 P.-Fod6r^, Nos. 2276-2294; and Snow, Ira. Law, 
App. I. 



220 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

208. Theory of Exterritoriality as applied to Vessels. — All 

vessels having a right to sail under the maritime or military flag 
of a State may be said to partake of its nationality and are under 
its protection and jurisdiction on the high seas. It has often 
been asserted that ships are floating portions of the State's terri- 
tory, but this is a pure fiction which, though comparatively harm- 
less, is wholly unnecessary. It might be said that vessels are 
treated as though they were floating parts of the territory of the 
State under whose flag they rightfully sail, but the jurisdiction to 
which they are subject may readily be justified on other and 
better grounds." 

209. Jurisdiction over Public Vessels on the Open Sea and in 
Foreign Ports and Waters. — The jurisdiction of a State over its 
warships on the open sea is absolute even in time of war, i.e. 
the right of search does not extend to them. This jurisdiction 
also extends to them in foreign ports and foreign territorial waters, 
where it is known as immunity from local jurisdiction." Though 
public vessels have no right of entry into foreign ports and waters,** 
freedom of permission to enter is assumed in the absence of an 
express prohibition. Such privilege of entry constitutes an 
" implied license/' which should be " construed as containing an 
exemption from the jurisdiction of the sovereign within whose 
territory she (the vessel) claims the rites of hospitality." " 

'^ Thus, a warship is an organ or direct representative of a State, and a merdiant- 
man partakes of the State's nationality. The sovereignty of a State over its vessels 
is therefore personal rather than territorial. 

The great majority of the more modem authorities reject the fiction of exterri- 
toriality, at least as applied to merchantmen. For good criticisms of this theory, 
see Hall (6th ed.), 244 ff. ; (Harcourt), LeUers of Historicus, 201-212; and Pietri, 
Etttde sur la fiction d*exterriiorialiti (1895), ch. 2, and conclusion. 

'^ This immunity also extends to organized land forces or armed troops where 
these have been given permission to use the territory of a State. These are under 
the jurisdiction and control of their own commanders. See infra, §§ 451-52. 

** Except probably where such waters constitute an international passageway. 
See supra, § 196. 

*^ Chief Justice Marshall, in Exchange v. McFaddon (181 2), 7 Cranch, ii6| and 
Scott, Cases, 208, 216. See also the opinions of Sir Robert Phillimore, in The Con- 
stitution (1879), 48 Law Journal, P. D. and A. 13 ; and of L .J. Brett, in The Parle- 
ment Beige (1878), Law Rep., 5 Probate Div., 197. These cases should be studied 
by every student. They may also be found in Scott, 218-225, and Snow, CaseSy 
103-120. For the Status of Mail Skips, see 2 Piggott, Nationality, 15 f. 

This immunity is not, however, quite absolute. They must " demean themselves 
in a friendly manner " and observe harbor, port, sanitary, and neutrality regulations. 



THE OPEN SEA 221 



210. Jurisdiction oyer Private Vessels on the Open Sea. — 

The jurisdiction of a State over its private vessels on the Ugh 
seas is less absolute and complete. Such vessels, in time of war, 
are subject to the rights of visit and search by belligerent war- 
ships ; but in times of peace they are free from the exercise of 
these rights, except in case of a strong or well-grounded suspicion 
of piracy.^ Other exceptions to complete freedom from inter- 
ference on the high seas are based upon the right of self-defense 
as in the case of the VirginiuSy^^ and the probable right of hot 
pursuit on the high seas for violation of municipal law where the 
pursuit has begun in territorial waters.*® 

This jurisdiction extends to all goods and persons on board the 
vessel, whether native or foreign-bom. A limited authority 
for the time being is vested in the captain. No foreign State has 
a right to interfere with his management or discipline, and he, 
in turn, is limited to the care and governance of his own vessel. 
Children bom during the voyage, at least according to the law 
of some coimtries, partake of the ship's nationality, and crimes 
conmiitted on board are punishable by the courts of the State 
to which the vessel belongs.*^ 

But the remedy against an abuse of hospitality is diplomatic rather than judicial. 
In no case can judicial process be served on boud such a vessel. It should be added 
that the crew, etc., of a public vessel are subject to local jurisdiction for offenses 
committed on shore. See 2 Moore, Digest, § 256. 

" A limited right of' visit and search is granted by treaty in a few cases. The 
most imi)ortant of these is for the regulation of the slave trade. See infra, § 216 . 
On the "Prohibition of Visit and Search in Time of Peace," see 2 Moore, Digest, 

5309. 

Even leading English authorities now admit that there was no warrant for the 
exercise of these rights by Great Britain to secure the impressment of native-born 
seamen, found on board American vessels in the early part of the 19th century. 
On the Impressment of Seamen, see especially Adams, History of the US. under 
Jejfferson and Madison (see index); Foster, Am. Diplomacy, 235-238; * 2 Moore, 
Digest, §§ 317-320; 3 Wharton, Digest, § 331; Walker, Science, 124 ff.; Dana*s 
Wheaton, §§ 108-109 and note 67. 

Several authorities (e.g. 3 Phillimore, §f 323-326, and $ P.-Fod6r6, No. 2543) 
speak of a right of visit or of approach for verification of flag or inspection of papers ; 
but such a right can hardly be said to exist, except in the possible case of a strong 
suspicion of piracy. See on this point, The Marianna Flora, 1 1 Wheat, i , and Scott » 
373. For the masterly reply of Secretary Webster to the British contention that 
there b a distinction between the rights of visit and search, see 2 Moore, Digest, 

pp. 935-939. 

^* See supra, § 132, note on pp. 145-146. 

^ See supra, § 194, note on pp. 199-200. 

*^ "It is dear that an English ship on the high sea, out of any foreign- country, 



222 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

211. Jurisdiction oyer Private Vessels in Foreign Ports and 
Waters. — It has also been claimed that immunity from local 
jurisdiction extends to private vessels in foreign ports and waters. 
There is, it is true, customary immunity for all offenses which 
merely affect the crew or internal discipline of the ship or which 
are of such a character as not to disturb the peace of the port ; 
but this appears to be a usage based on comity or convention ^ 
rather than a strict rule of International Law. This so-called 
" French rule " is, however, a very convenient and desirable 
practice from the standpoint of commercial interests, and deserves 
the heartiest commendation and support.^ 

212. Jurisdiction over Cases Arising from Salvage or Collision. 
— As a rule admiralty courts will decline to assume jurisdiction 

is subject to the laws of England ; and persons, whether foreign or English, on board 
such ship are as much amenable to English law as they would be on Enj^ish soil.*' 
Regina v. Lesley (i860), Bell's Crown Cases, 220, and Scott, 337. For other leading 
cases, see Scott, 331-342, and Snow, 184-193. 

A most interesting and important case not found in Scott is that of John Ander- 
son, reported in i Moore, Digest, pp. 932-935, and i Wharton, Digest, 123-125. 

" See especially 2 Piggott, Nationality, 17-32, for the English law and discussion 
of doubtful or controverted points. Exclusive jurisdiction over matters that con- 
cern only the internal order or discipline of merchantmen (including disputes as to 
wages) are frequently conferred upon consuls by consular conventions. For the 
law and practice of the United States, see 2 Moore, Digest, § 206. In ElHs v. 
Mitchdl (1874) the Supreme Court of Hongkong held that the American consul 
could not setde a dispute as to seamen's wages in the absence of express authority 
under treaty. See Scott, 234 ; or Snow, 133. 

^ This rule appears to be of French origin. See The Neitftan and the Sally and 
the J ally or the Tempest, Snow, Cases, 121-123; 1 Ortolan, 293-298 and 441-455 ; 
and Wheaton, f 103. 

The leading American case is that of Wildenhus (1886) (i 20 U.S. Rep. i, and Scott 
225) in which the French cases cited above are reviewed. In this case murder 
between decks of the Belgian steamer Noordland moored to a dock in Jersey City 
was held to be a crime which affected the peace and tranquillity of the i)ort. (There 
was a convention of the character above described between Belgiiun and the United 
States.) Cf. the V anemone (1875) (Snow, 124-125) in which the Supreme Court 
of Mexico held that the murder of a Frencbunan by another on board a French mer- 
chant vessel in a Mexican port was not necessarily a disturbance of the peace of the 
port. In The Tempest (cited above) murder was held to be such a crime by the 
Court of Cassation in France. 

A most interesting case in which three States had concurrent jurisdiction is that 
of Regina v. Anderson (1868), 11 Cox, C. C, 198 and Scott, 331. It is that of mur- 
der by an American citizen on a British merchant vessel in French waters. 

In 1897 the Institute of International Law adopted a "Project of Regulations for 
Legal Regime of Ships and their Equipages in Foreign Ports." 16 Annuaire, 231- 
241. The Institute adopted the French Rule (Art. 29) as an exception to the prin- 
ciple of territorial jurisdiction, which was strictly upheld (Art. 28). 



THE OPEN SEA 223 

over disputes concerning mariners' wages in a foreign vessel, but 
they may dedde cases of salvage or collision between foreigners 
where the questions at issue are communis juris. ^ 

ni. Piracy 



213. Definition of Piracy. — Piracy consists of an act or acts 
of violence adequate in degree and conmutted with piratical 
intent on the open sea by a private vessel," without authority 
from any State or belligerent community.* 

214. Marks of Piracy. — The following marks or character- 
istics of a piratical act should be emphasized : (i) It must be an 
overt act of violence adequate in degree.*^ It is usuaUy, though 
not necessarily, an act of depredation committed with intent to 
plimder {animus furandi or lucri causa) and the pirate is nearly 
always a sea robber. (2) It must be committed on the open 
sea or at least outside the territorial jurisdiction of any State. 
Opinions diflFer * as to whether piracy includes descents from the 

^ In the case of the British ship Reliance (1848) (i Abbott's Adm. Rep., 317), 
the United States Circuit Court for the Southern District of New York declared : 
"The admiralty courts of the United States will decline jurisdiction of controversies 
arising between foreign masters and owners unless the voyage has been broken up 
or the seamen unlawfully discharged." The Reliance^ having rescued goods from 
the wreck of another British vessel, had instituted proceedings for salvage. See 
Scott, Cases y 230; Snow, Cases y 129; and 2 Moore, Digest, 294. 

In the case of the Belgenland (18S4) (114 U.S. Rep. 355; see also Snow, 189, and 
Scott, 338), which grew out of a collision, the Supreme Court of the United States 
assumed jurisdiction. For references to other cases of this character, see note in 
Snow, 132, and Scott, 233. See especially 2 Moore, Digest, § 205. For an Inter- 
national Convention concerning '* Assistance at Sea and Salvage," signed at 
Brussels in 1910, see Supplement to 4 A. J. (1910), 126 S. For valuable editorial 
comment, see 4-6 A, J. (1910-12), 412 ff., 192 f., and 488 ff., respectively. 

In 1873 Secretary Hamilton Fish complained of the jurisdiction over disputes 
betweien American masters and mariners exercised by the local conmion law courts 
of Liverpool. See 2 Moore, 293 and Snow's note referred to above. 

^ Or by the mutinous crew or passengers against their own vessel for the pur- 
pose of converting it to their own use. 

** See note to U. S. v. Smith (1820), 5 Wheaton, 153, 160-183, ^o^ various defini- 
tions of piracy, collected by Judge Story. The other leading American cases are 
U. S, V. Palmer (1818), 3 Wheaton, 610; U, S, v. Klintock (1820), 5 Wheaton, 144; 
and U. S. v. Pirates (1820), 5 Wheaton, 184. The earh'er definitions of piracy are 
inadequate rather than incorrect. 

'^ For instance, robbery, murder, destruction by fire, etc. It would not include 
such acts as petty larceny or a mere threat. 

" Hall (6th ed., p. 256), and Lawrence (4th ed., p. 233) agree that piracy may 
include descent from the sea and depredations upon traders on an unappropriated 



224 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

sea upon the coast for purposes of kidnapping or plunder, but it 
certainly must be directly connected with the sea. (3) It must 
be piratical and non-political in motive and imauthorized by any 
State or insurgent community.** Consequently, insurgent vessels 
should not be regarded as pirates unless they commit depreda- 
tions against neutral commerce.*® 

island; and Hall evfen maintains that though piracy "cannot take place indepen- 
dently of the sea/' "a pirate does not so lose his piratical character by Unjfing 
within State territory that piratical acts done on shore cease to be piratical." Law- 
rence, in dissenting from this latter view, justly obser\'es : ''Surely the fact that the 
crime was committed within territorial jurisdiction would make the perpetrators 
amenable to the law of the State, not to the provisions of an international code." 
Westlake (I, 178) agrees with Lawrence, whose view on this point is undoubtedly 
the correct one. Oppenheim (I, § 277) denies that acts of violence committed by 
descent from the open sea can ever be considered piracy. 

-* The acceptance of commissions from both belligerents is deemed equivalent 
to a total lack of authority, but acts done in excess of authority are not piracy. 
However, if an insurgent vessel knowingly continues hostilities after the govern- 
ment she serves has ceased to exist, her acts may be regarded as piratical. For the 
case of the Shenandoah, see Lawrence, Principles (4th ed.), p. 335. 

'° The main case dted in contravention of this view is that of the U, 5. v. The 
Ambrose Light (1S85), 25 Fed. Rep. 408; Scott, 346; and Snow, 200, in which 
the U. S. District Court for the Southern District of New York held that a vessel 
found on the high seas in the hands of insurgents who had not been recognized as 
belligerents by any independent nation, is technically piratical. But " the judgment 
in the case of the Ambrose Light has called forth much adverse criticism ; and on the 
whole the weight of opinion would seem to be against the position that insurgent 
vessels not molesting the ships of other nations may be treated as pirates. See a 
criticism of this case by Mr. Francis Wharton in 3 Wharton's Digest, p. 469." 
Snow's note in Cases, on p. 204, and in Scott, 350. 

Westlake (I, 180) calls attention to the fact that the court made the following 
statement as to the grounds of its decision : *' When a seizure has been made by the 
navy department under the regulations, and the case is prosecuted before the court 
by the government itself, claiming summum jus — its extreme rights — the court 
is bound to apply to the case the strict technical rules of International Law." 
The court also stated that " where insurgents conduct an armed strife for political 
ends, and avoid any infringement or menace of the rights of foreign nations on the 
high seas, the modem practice is, in the absence of treaty stipulations or other 
special ties, to take no notice of the contest." 

It should be added that the ship was released on the ground that the Secretary 
of State had impliedly recognized a state of war by his note of April 24, 1885, to the 
Columbian Minister — an inference which Secretary Bayard denied. See 2 Moore, 
Digest, p. 1099. On the case of the Ambrose Light, see especially 2 Moore, § 332, and 
Wharton, § 381. 

The other cases sometimes cited in contravention of the view upheld in the text 
are those of The Magellan Pirates (1853), i Spinks Eccl. and Adm. Rep. 81, and 
Scott, 351 ; and The Huascar (1877), 2 Moore, p. 1086, and 3 Wharton, 474. 

In The Magellan Pirates, Dr. Lushington held that certain Chilean insurgents, 
who had seized a British and an American vessel and appropriated treasure found 



THE OPEN SEA 225 

215. Jurisdiction over Pirates. — '' Pirates being the common 
enemies of all mankind, and all nations having an equal interest 
in their apprehension and punishment, they may be lawfully 
captured on the high seas by the armed [ ?] vessels of any par- 
ticular State, and brought within its territorial jurisdiction, for 
trial in its tribunals. "^^ It was formerly customary to ezerdse 

on board one of these vessels, were pirates, but it was not on the ground that they 
were insurgents. The learned judge said : '' It does not follow that rebels and insiu*- 
gents may not commit piratical acts against subjects of other States, especially if 
such acts were in no degree connected with the insurrection or rebellion. See x 
Phillimore, § 360, for a fuller report of this case. 

The Huascar was a Peruvian monitor whose crew had revolted in 1877 siQ<l 
declared for the insurgent Government. It stopped several British vessels and had 
taken coal from one of them, and several officers from the other. After an unsuc- 
cessful attempt to capture her on the part of a British cruiser, she subsequently 
surrendered to Peru, who claimed an indemnity from Great Britain. In the con- 
troversy which followed, the British Government maintained that the Huascar 
was technically a pirate. On this interesting case, see i Calvo, § 504 ; Hall (6th 
ed.), 261; I Halleck (3d ed.), 447-449 n.; Lawrence (4th ed.), pp. 235-236; 
•Moore, § 1086; 5 P.-Fod6r6, No. 2512; Snow, Cases y 208; Walker, Manual^ 

56-59. 

In the case of the Montezuma (1877), a vessel in the service of the Cuban insur- 
gents which attacked Spanish merchantmen in the Rio de la Plata, the Brazilian 
Government refused to regard as a pirate a ship which confined its hostile acts to 
Spanish vessels. See 1 Calvo, § 502, and Snow, Cascs^ 206 fif. See also in support 
of this view. The Republic of Bolivia^ etc. (1908-1909), reported in 3 ZeUsckrift, 
165 flf., 341 flf. 

England, France, and Germany took a similar view of their rights and duties 
when the Spanish Government declared the Spanish squadron at Carthagena, 
which had fallen into the hands of insurgents, to be piratical, i Calvo, §§ 497-500. 
This was also the view of Secretary Bayard in his correspondence with the Colum- 
bian Government. See i Moore, § 332. 

The parent State may, of course, treat rebels or insurgents as pirates by municipal 
law, but they are not pirates jure gentium. The piratical intent is wholly lacking. 
It is a perversion of the original and essential meaning of piracy to regard them as 
such. Recognized belligerents should not be treated as pirates even by the parent 
State, for they have acquired an international status which should be respected. 

*^ Wheaton, § 124. This is an admirable statement of the law of piracy. The 
only modification it appears to need is the omission of the word armed before ves- 
sels. A few German writers (see i Oppenheim, p. 330 n., for references) claim that 
only warships may seize pirates, but this view is probably incorrect. Of course only 
armed vessels would be apt to venture to attack them. 

The text should not be interpreted to mean that pirates can only be tried and 
punished in the jurisdiction of the State whose vessel has captured them. For, as 
Wheaton remarks in the next paragraph : "Piracy, under the law of nations, may 
be tried and pimished in the courts of justice of any nation, by whomsoever and 
wheresoever committed ; but piracy created by municipal statute can only be tried 
by that State within whose territorial jurisdiction, and on board of whose vessels, 
the offence thus created was committed.*' 



226 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

a summary jurisdiction on the spot, but it would seem that this 
cannot now be done, unless it is impossible to bring them into the 
nearest home port for trial. They may be tried by any compe- 
tent court, and piracy is usually regarded as a capital crime.^ 

It is pretty generally agreed that the warships of all nations " 
have the right of approach for the purpose of verifying the flag 
in case of suspicious conduct on the part of a vessel on the high 
seas, and that they may exercise the right of visit and search if 
there is grave reason for suspicion. But the exercise of this 
right on insufficient groimds may furnish a good cause for com- 
plaint, and even be made the basis of a claim for damages. 
" With regard to property captured by pirates, it is a rule of the 
Law of Nations, derived from Roman Law, that it must be pre- 
sumed never to have been divested from its original owners. 
On recapture, the property revests in the former owner, although 
salvage may be payable." '* 

IV. The Slave Trade 

216. The Slave Trade. — It is a serious reflection upon our 
civilization that the slave trade was permitted to flourish almost 
imchecked until the close of the Napoleonic wars. The main 
credit for having imdertaken a crusade against this fearful traffic 
belongs to England,^ which secured a declaration in favor of the 
abolition of this " scourge which has so long desolated Africa, 
degraded Europe, and afflicted humanity " at the Congress of 
Vienna in 1815, and again at Verona in 1822. The United 
States joined the crusade in 1820 through an Act of Congress 
which declared the slave-trade piracy — a doctrine which found 

"^ However, this is not necessarily the case. It should also be said that a State 
is not obliged to punish piracy. "According to the German Criminal Code, piracy 
committed by foreigners against foreign vessels cannot be punished by German 
courts." I Oppenheim, 330-331 n. 

^ Judge Story, in the Marianna Flora, 11 Wheat, i. 

*♦ Cobbett's Cases (2d ed.), 130. Cf. 1 Oppenheim, § 279. 

^^ The English Prize Courts had already refused restitution in two cases of 
American vessels engaged in the slave trade on the ground that it is a ''trade which, 
being unprotected by the domestic regulations of their l^islature and Government, 
subjects the vessel engaged in it to a sentence of condemnation." The AmSdit^ 
(1810), I Aeton, 240, and The Foriuna (181 1), i Dodson, 81. See Dana's Wheaton, 
§§ 128-129 and note 86, and 2 Moore, § 310, pp. 914-915. 

The British Parliament had abolished the slave trade in 1807. 



THE OPEN SEA 227 

its way into a number of laws and treaties, but which had been 
repudiated by the highest au thorites^ and found no warrant in the 
Law of Nations. 

The great obstacle encountered by England in her efforts to 
suppress the slave trade was opposition to the exercise of the 
right of visit and search in time of peace, more particularly on 
the part of France and the United States. It was not before 
1841 that she succeeded in negotiating the so-called Quintuple 
Treaty with France,'^ Prussia, Austria, and Russia granting a 
reciprocal right of .search of vessels suspected of slave trading and 
punishing it as piracy. But the French Chamber of Deputies 
refused to ratify the treaty, and would only consent (in the treaty 
of 1845) to a right of visit for a verification of the flag and papers. 
By 1850 England had concluded nearly 50 treaties for the sup- 
pression of slave trading." But the United States remained 
obstinate, and it was only in 1862, after Great Britain had officially 
renoimced all claim to the rights of visit and search,^ that the 
United States agreed to a treaty granting the mutual rights of 
detention, search, and seizure of merchantmen suspected of 
slave trading within 200 miles of the African coast and 30 leagues 
of the coast of Cuba.** 

The abolition of slavery in the various States of America and 

^ The leading case is that of Le Louis (181 7, 2 Dodson, 210, and Scott« 352) 
one of Sir William Scott's (or Lord Stowell's) most famous decisions. Le Louis 
was a French vessel which was captured for slave trading in 181 6 after the close of 
the Napoleonic wars. Lord Stowell denied the right of visit and search in time 
of peace except for piracy or in pursuance of a treaty (or possibly for purposes of self- 
defense) ; and maintained that the slave trade, though unjust and condemned by 
the law of England, was not legal piracy, nor was it legally a crime by the universal 
Law of Nations. See especially Wheaton, § 131, and Dana's note 86. This line 
of reasoning was followed by Chief Justice Marshall, in the case of the The Antelope 
(1825), 10 Wheaton, 66. See Wheaton, § 133, and Dana's note 88 ; and 2 Moore. 
917-918. 

^ A very lihiited right of search had been mutually granted by the treaties of 
1831 and 1833 between France and England. 

*> See the lists in i Phillimore, § 308, and i Halleck (Baker's 3d ed.), 254-255. 

** This was in 1858. The renunciation was made by Lord Malmesbuiy who acted 
on the advice of the law officers of the Crown. 2 Moore, Digest^ pp. 943-945. But 
the United States had (in 1842) agreed to maintain a fleet on the African coast to 
assist in the suppression of the African slave trade. 

^ "By an additional article of Feb. 17, 1863, this reciprocal right was extended 
to waters within 30 leagues of the islands of Madagascar, Porto Rico, and Santo 
Domingo." 2 Moore, p. 947. 



228 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

in Cuba finally put an end to the West African slave trade ; but 
there still remained the trade on the East African coast and the 
overland traffic. The fourteen States (including the United 
States), which signed the General Act of the Conference of 
Berlin concerning the Congo, (1884-1885), obligated themselves 
" to strive for the suppression of slavery and especially of the 
negro slave trade " (Art. 6) ; and Article 9 declared : 

" Conformably to the principles of the Law of Nations, as they 
are recognized by the Signatory Powers^ the slave trade being 
interdicted, and as the operations which by land and sea, furnish 
slaves to the trade ought to be equally considered as interdicted, 
the Powers who exercise or shall exercise rights of sovereignty or 
an influence in the territories forming the conventional basin of 
the Congo, declare that these territories shall not serve either for 
a market or way of transit for the slaves of any race whatever. 
Each of these Powers engages itself to employ aU the means in its 
power to put an end to this commerce and to punish those who 
are occupied in it." ^ 

But these provisions were not effective, and the same Powers^ 
which had participated in the African Conference of Berlin, 
signed (in 1890) the General Act of the Conference of Brussels 
called for the purpose of "putting an end to the crimes and 
devastations engendered by the traffic in African slaves, of effi- 
ciently protecting the aboriginal population of Africa, and of 
securing for that vast continent the benefits of peace and civiliza- 
tion." « 

This convention concedes a limited right of visit and search^ 
of vessels whose tonnage is less than 500 tons within a great 
maritime zone extending " on the one hand, between the coasts 
of the Indian Ocean (those of the Persian Gulf and of the Red 
Sea included), from Beloochistan to Cape Tangalane (Quili- 
mane) ; and, on the other hand, a conventional line- which first 
follows the meridian from Tangalane till it intersects the 26th 

^ Supplement to 3 i4. /. (1909), 13-14. 

^ With the addition of the King of Belgium in his capacity of "Sovereign of the 
Independent State of the Congo," the Shah of Persia, and the Sultan of Zanzibar. 

^ See preamble to the General Act of the Berlin Conference as translated in 
Supplement to 3 i4. /. (1909), 29 ff. The Act consists of 100 Articles and includes 
xcgulations for the suppression of the traffic on land as well as by sea. 

^ See Arts. 42 to 49 for the rules regulating the right of visit and search. 



THE OPEN SEA 229 

degree of south latitude ; it is then merged in this paraUel, then 
passes around the island of Madagascar by the east, keeping 20 
miles off the east and north shore, till it intersects the meridian 
at Cape Ambre. From this point the limit of the zone is deter- 
mined by an oblique line, which extends to the coast of Beloochis- 
tan, passing 20 miles off Cape Ras-el-Had" (Art. 21). 

" For purposes of investigation and trial, each sig;natory Power 
engages to appoint in the zone in question territorial or consular 
authorities, or special delegates, competent to deal with the cases 
covered by the convention. Such a magistrate, when an armed 
arrested vessel is turned over to him, must proceed to make a full 
investigation according to the laws of his own country, in the 
presence of an officer belonging to the foreign cruiser. If it is 
proved that a flag has been frequently used, the arrested vessel is 
to remain at the disposal of the captor (Art. 51). If the exam- 
ination shows an act conne<;ted with the slave trade, proved by 
the presence on board of slaves destined for sale, or any other 
offense connected with the slave trade, for which provision is 
made by special convention, the vessel and cargo are to remain 
sequestrated in charge of the magistrate. The captain and crew 
are then to be turned over for trial to the tribunal of the nation 
whose flag they used (Arts. 54-57), and the slaves are to be set at 
liberty as soon as judgment has been pronounced. Damages 
are to be allowed where a vessel has been illegaUy arrested" 
(Arts. 53, 58).« 

An International Maritime Bureau, at which each of the signa- 
tory Powers may be represented by a delegate, shall be established 
at Zanzibar in order to '' centralize all documents and informa- 
tion of a nature to facilitate the repression of the slave trade in 
the maritime zone " (Arts. 74-80).^ 

It would seem that there has been an honest effort on the part 
of the great majority of the Powers concerned to enforce the 

** 2 Moore, Digest, p. 950. 

^ Auxiliary bureaus may also be established and a "special office attached to 
the foreign office at Brussels'' for the exchange of documents and information 
between the Powers (Arts. 81-85). '^^^ General Act of the Brussels Conference 
seems to have been ratified by all the signatory Powers ; excepting that, owing 
to jealousy of the maritime i)ower of Great Britain in the Indian Ocean, the French 
Chamber of Deputies refused to ratify Arts. 21-23 and 42-61 conceding the right 
of visit and search within the maritime zone. 



230 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

provisions of the Berlin Conference, and that, as a consequence, 
the African slave trade is practically extinct or merely sporadic 
by sea, and on its way to extinction, or at least greatly decreased, 
on land.*^ 

In view of the work of the Brussels Conference and of the 
numerous treaties providing means for the prevention and punish- 
ment of this traffic. Lord Stowell's dictum that the slave trade is 
not a crime in the eyes of the Law of Nations can scarcely be said 
to be longer tenable. True it is not piracy, and slavery itself is 
a domestic institution which International Law does not, strictly 
speaking, condemn as illegal; but slave trading undoubtedly 
stands condemned, at least by the conventional Law of Nations. 

BIBLIOGRAPHT 

Slave Trade and the Brussels Conference. — Barclay, in 22 R. D. I. 
(1890), 316 ff., 454 ff. ; Bluntschli, Arts. 351-352; *Bonfils (Fauchille), 
Nos. 399-409, see pp. 220 and 222 for preferences ; Bry, Nos. 189-192; 
5 Galvo, §§ 2997-3003; I Cobbett (3d ed.), 290-293; Creasy, 259-277; 
Engelhardt, in 22 R. D. /. (1890), 603 ff. ; Gareis, in 2 HoltzendorfF, 553- 
581 ; Ibid.f Die Sklatenhandel und das Volkerrecht (18S5) ; 2 Halleck (Baker's 
3d ed.), 247-256; * Lawrence, Principles (3d ed.), §§ 123-124; Ibid. (4th 
ed.), § 103; Liszt (3d ed.), § 36; iF.de Martens, § 85; 2 M6rignhac, 
512-523 ; * De Mon tardy. La iraiU et le droit int. (1899) ; 2 Nys, 147-156; 
/Wd., in 22 R. D, /. (1890), 57 ff. and 138 ff. ; * 2 Moore, Digest, § 310 ; Pi6de- 
lievre, Nos. 637-644; * i Phillimore, Pt. Ill, ch. 17, §§ 296-313; Poinsard, 
EludeSf etc., 38-47 ; Pomeroy, § 193 ; * 5 P.-Foder6, Nos. 2513-2542 ; 

* Queneuil, La conference de Bruxelles et ses resultats (1907) ; * i Rivier, 
374-379; Rolin-Jaequemyns, in 23 and 24 R. D. I. (1891 and 1892), 560 
ff., 206 ff. ; * Schuyler, Am, Diplomacy ^ 233 ff. ; Scherling, Die Bekdmfung 
von Sklavenraub (1897); * Scott, Caiej, 352-369; Snovft I nt. Law , 4^47; 
Taylor, § 190; Ullmann (2d ed.), § 133; * Walker, Manual^ §21, pp. 60- 
65 ; * Wheaton (Dana's ed.), §§ 125-133, and * Dana's notes 85-89 ; Woolsey, 

§ 146. 

Piracy. — Bernard, Neutrality, etc., 11 8-1 21; Bluntschli, Arts. 343- 
350; Bonfils, Nos. 592-594; Bry, Nos. 185-188; *! Calvo, §§ 485-512; 
I Cobbett, Cases (3d ed.), 283-290; Ibid. (2d ed.), 128-139; Despagnet, 
Nos. 440-442; I Fiore, Nos. 494-495; Gareis, in 2 Holtzendorff, 571-581; 

* Hall (6th ed.), 252 ff. ; i Halleck, 79-84, 444-450; Heffter, § 104; * Law- 
rence, Principles (3d ed.), §§ 122-123; I^- (4th ed.), § 102; Liszt (3d 
ed.), § 36; 2 M6rignhac, 506-511; *2 Moore, Digest , §§ 31 1-3 14; *i 
Oppenheim, §§ 272-280; i Ortolan, 207-227; Perels, §§ 16-18; i Philli- 
more, Pt. Ill, ch. 20, §§ 356-361 ; Poinsard, Etudes, etc., 47 f. ; Pomeroy, 

*'^ See especially Queneuil, La confirence de Bruxelles et ses resultats (1907), chs. 
7-9. 



THE OPEN SEA 231 

§§ 188-192 ; * 5 P.-Fodfr6, Nos. 2490-2512 ; * i Rivier, 248-251 ; Schuyler, 
on "The Piratical Barbary Powers," in American Diplomacy ^ 193-232; 
Scott, Cases, 345-369; Snow, CaseSy 195-212; Ibid.,Ini, Law, § 27; Stiel, 
Der Taibcstand der Piraterie (1905) ; Taylor, §§ 188-189; Testa, ch. 4, pp. 
90-97; Ullmann (2d ed.), § 104; * Walker, Manual, § 21; *i Westlake, 
177-182; 3 Wharton, Digest, §§ 380-381; Wheaton (Dana's ed.), §§ 122- 
124, and * Dana's notes, 83-84; Woolsey, §§ 144-145. 

Nationality of Ships and Jurisdiction over Vessels on the High Seas 
and in Foreign Ports and Waters. — Bluntschli, Arts. 317-352; ♦Bonfils 
(Fauchille), Nos. 584-629; Bry, Nos. 193-204; i and 3 Calvo, §§ 385- 
484, 1550-1589; I Cobbett, Cases (3d ed.), 251-283; Davis (3d ed.), 
70-83; Despagnet, Nos. 431-439; i and 2 Fiore, Nos. 537-550, 730-742; 
Gregory, in 2 Mich. Law Rev. (1904), No. 5 ; * Hall (6th ed.), 160-164, 184- 
208, 247-251 ; Ibid., Foreign Jurisdiction of the British Crown, §§ 106-109; 
I Halleck (Baker's 3d ed.), 315-232, 438; Heffter (Geffcken), §§ 78-80; 
Heilborn, System, 211-278; Heyking, VexterritorialiU (1889), §§ 44-47; 
Imbart de Latour, La mer ter., 280-317 ; Jordan, in 40 R, D.I. (1908), 341 fiF. 
and 481 ff. ; * Lawrence (3d ed.), §§ 1 19-120. 128-129; Ibid. (4th ed.), 
§§ 99-100, 107; Liszt, § 26; * I and 2 Moore, Digest, §§ 174, 321-328; 2 
M6rignhac, 536-586; 2 Nys, 140 ff. ; * i Oppenheim, §§ 260-271 ; * i Orto- 
lan, 163-206, 228-292; * Perels, §§ 7-15; i Pi6delievre, Nos. 622-635; 
I Phillimore, §§ 344-355; 2 Piggott, Nationality, passim-, Pomeroy, 
§§ 178-187 ; * 5 P.-Fod6r6, Nos. 2275-2470 ; Pietri, La fiction d^ exterritoriality 
(1895), 355-372; I Rivier, 150-151, 156, 239-248, 333-335; * Scott, Cases, 
208-255, 329-344; Snow, Cases, 103-138, 184-194; *Snow, Int. Law, 
§§ 16-17, 23-26; Stoerk, in 2 Holtzendorf, 439-453» 518-550; Testa, 79-89, 
98-112; Taylor, §§ 253-271; Walker, Manual, ii 20, 27; *i Westlake, 
163-176, 254-262; I and 3 Wharton, Digest, §§ sSS^y 4i, 325-327, 33i, 
408-410; * Wheaton (Dana's ed.), §§ 100-109 and * Dana's notes, Nos. 
63, 66, 67. 

Freedom of the Open Sea. — Bluntschli, Arts. 304-308 ; * Bonfils 
(Fauchille), Nos. 572-583; Bry, Nos. 176-184; Bynkershoek, De dominio 
maris (1702) ; Castel, Du principe de la liberty des mers (1900) ; i Calvo, 
§§ 343-352; 2 Cauchy, 92-124; Creasy, Nos. 236-239; Despagnet, No. 
410 ; 2 Fiore, Nos. 718-744 ; * Fulton, The Sov. of the Sea (191 1) ; * Grotius, 
De mare liberum (1609) ; Ibid., De jure belli ac pacis, liv. II, cap. 2, § 3 ; 
* Hall (6th ed.), 140-152; Hautefeuille, Histoire, etc., 13-25; Heffter 
(Geffcken), §§ 73-74; Lawrence (3d ed.), § 105; Liszt (3d. ed.), § 26; 
I F. de Martens, §§ 96-98 ; 2 M6rignhac, 498-505 ; * 2 Moore, Digest, 
§ 309; Ibid., Am. Diplomacy, 6^-S6; 2 Nys, 132-139; Ibid., Les origines, 
379-387; *i Oppenheim, §§ 248-259; i Ortolan, 1 13-138; Perek, § 4; 
I Phillimore, §§ 172-196; Pomeroy, §§ 155-158; 2 P.-Fod6r6, Nos. 871- 
885 ; * I Rivier, 234-239 ; * Scott, Cases {Queen v. Keyn), 154 ff. ; * Selden, 
Mare dausum (1635) ; Stoerk, in 2 Holtzendorff, 483 ff: ; Taylor, §§ 242-246 ; 
Testa, 63-66; I Twiss, §§ 172 ff. ; Ullmann (2d ed.), §§ 101-102 ; * Vattel, 
liv. I, §§ 279-286; Walker, Science, 163-171 ; i Westlake, 160-163; 
Wheaton, §§ 186-187, and Dana's note 113; Woolsey, § 59. 



CHAPTER XV 

THE LAW OF THE AERIAL SPACE IN TIME OF PBACS^ 

217. Criticism of flie Principles Formulated by the Insti- 
tute of International Law. — The invention of wireless telegraphy 
and recent improvements in the aeroplane and dirigible balloons 
have greatly extended the possibilities of international aerial 
commimication and navigation, and have thus rendered necessary 
a discussion of the law of the so-called atrial domain in works on 
International Law. 

During its session at Ghent in 1906, the Institute of Interna- 
tional Law adopted the following principles : '^ The air is free. 
In time of peace and in time of war, States have over it only the 
rights necessary for their self-preservation." * 

These principles, which were based upon the views of Fauchille' 

* For the Law of A&ial Warfare ^ see infra, ch. 28. 

* Article i of the Regulations adopted by the Institute for Aerostats and Wireless 
Telegraphy. 21 Annuaire, 327-329. Cf. Art. 3 of the Rules adopted at Madrid, 
in 191 1, which states that "atrial circulation is free," saving the rights of the under- 
lying States to take certain measures to insure security. 24 Annuaire, 346. The 
rules adopted in 191 1 have no great importance. 

The following is the text of the remaining articles adopted at Ghent in so far as 
they relate to the Law of Peace: 

Art. 2. — In default of special arrangements, the rules applicable to ordinary 
telegraphic communication are applicable to communication by wireless telegraphy. 

Art. 3. — Each State has the power ifaculU), to the degree necessary for its 
security, to oppose, above its territory and its territorial waters, and to as great a 
height as it may find useful, the passage of Hertzian waves, whether these be enutted 
by apparatus belonging to the State or by private apparatus phiced upon the earth, 
on board a vessel, or in a balloon. 

Art. 4. — In case of the prohibition of communication by wireless telegraphy, 
the government should at once notify the other governments of the prohibition 
it has made. 

' For the extremely interesting and suggestive \news of M. Fauchille, the bril- 
liant and versatile editor of the Revue ginirale de droit int. public, see Bon6]s 
(Fauchille), Nos. 531, i-io; Le domain airien, in 8 R. D. J. P. (1901, 414-490; 
Rapports a Vlnstitut de droit int., in 19 and 21 Annuaire, 19-86 and 76-87; and 
IT R.D.I.P (1910), ssff. 

232 



A£RIAL space in time of peace 233 

and accepted by a vote of 14 against 9, have been justly criti* 
dsed. They are not in agreement with recent articles and 
monographs^ on this subject, and do not answer the practical 
necessities either of atrial navigation or of wireless telegraphy, 
especially in time of war. 

218. The Correct Principles. — The correct principles were 
xmdoubtedly those formulated by Professor Westlake, who 
proposed the following alternative article at the above-named 
session of the Institute : " The State has a right of sovereignty 
over the atrial space above its soil, saving a right of inoffensive 
passage (usage) for balloons and other aerial machines and for 
conmiimication by wireless telegraphy.'" 

219. Territorial Sovereignty over the ASriai Space. — From the 
standpoint of State or mimidpal law there can be little, if any, 
doubt that the atrial space is subject to the territorial sovereignty 
of the State underneath, at least as far as it can be utilized or 
controlled. " Justinian tells us that the air, like the high seas, is 
by natural right common to all. In the sense that all can breathe 
it in as they have opportimity this is certainly true ; but it can 
hardly be accepted as a proposition of jurisprudence with respect 
to its use for the support of a vehicle of transportation." ^ 

There existed, however, another principle of the Civil Law which 
declared that the lord of the soil was also lord of the heavens 
(dominus soli; dominus ccdt)^ which, with certain limitations 

' See especially * Baldwin and *Kuhn, in 4 i4. 7. (1910), 94 ff. and 109 ff. ; 
Grttnwald. Das Luftschiff, etc. (1908) ; Julliot, De la proprieii du domain airien 
(1909); *Meurer, Luftsckijfakrtsrecht (1909); Meyer, Die Erschliessung des 
iMftraumes in ihrem reckUichen Polgen (1909); Schneeli, Radioielegrapkie und 
VSUserreckt (1908); * Fleischmann, Grundgedanke eines Luftrechis (1910); and 
Wilson, in 5 Am. Pol. Sci. Rev. (loii), 171 ff. 

Meili, on the other hand, still supports the principles laid down by the Institute 
of International Law. See especially Das Luftschijf (1908) and Die drahilose 
Tdegraphie (1908). 

* See 31 Annuaire (1906), 297-299. Westlake's article received but three votes 
at the time of its proposal (1906) to the Institute, but it has since won wide support. 
Nearly all of the above-named authorities are in substantial accord with its pro- 
visions. 

• Baldwin, in 4 i4. 7. (1910), 95. He dtes Insi. I, i,de rerum divisiotis, § i; 
and Digest, 1, 8, de divisione rerum, § 2, i. 

' JuUiot, op. dt., p. 7. The Roman tradition of ownership in the atrial space 
was revived in the later Middle Ages and came down to Blackstone through Coke 
upon Littleton. Blackstone says : '' Land hath also, in its legal signification, an 
indefinite extent upwards as well as downwards. Cujus est solum ejus est usque ad 



234 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

and modifications^ appears to have been incorporated into our 
common law.* 

220. Why Control is Necessary. — Control of the aerial 
space by the territorial power underneath is necessary for vari- 
ous purposes in time of peace as well as in time of war. As far 
as the use of wireless telegraphy is concerned, it is necessary in 
order to oppose the passage of Herzian waves to the degree that 
the security or interests of the State may demand.' In respect 
to aerial navigation, it may be desirable or necessary in order 
to prevent espionage, to enforce the collection of customs duties, 
maintain sanitary and quarantine regulations, and prevent 
various crimes, particularly smuggling. 

221. The Nature of this Control. — From the standpoint of 
International Law, it would seem that the State underneath 
has a limited right of territorial sovereignty or jurisdiction over 
the aerial space above, at least as far as it can be utilized or 
controlled.*^ The aerial space above the ocean or imoccupied 
territory is of course free; but this can hardly be claimed in 
respect to that portion of the atmosphere above the territorial 
waters (including the marginal seas) or above that part of 

ccdum is the maxim of the law. ... So that the word 'land' includes not only the 
face of the earth, but everything under it, or over it," Cooley's BlacksUme (4th ed.), 
Bk. II, p. 18. Cf. Coke upon Littleton (Thomas ed., 1836), Bk. II, ch. i. 

" It is expressly incorporated into the codes of Germany, France, and Switzer- 
land. For citation and discussion of cases bearing on the rights of the owner of 
the soil in the United States, see Baldwin and Kuhn,in4 A, J, (1910), 102 fif., and 
1 23 ff . As far as the State is concerned, the theory of ownership has, of course, 
been abandoned for that of imperium or territorial sovereignty. GrOnwald ap- 
p>ears to stand alone in clinging to the theory of dominium or ownership. 

For citations from the German, French, and Swiss codes, see 4 il. /. (1910), 98 f., 
127 f. ; Julliot, 7 f. ; and Meurer, 13 ff. 

" Art. 3 of the Rules of the Institute. See note 2, supra. 

'<* Some publicists favor the division of the aerial space, for purposes of jurisdic- 
tion, into an upper and a lower kone. Holland (13 R. D. J. P., 58 ff.) holds the 
atmosphere to be territorial to a distance of 330 meters. Fauchille favors exclusive 
control for purposes of ?clf-defense to a distance of 500 meters (ly R. D. I. P., 60). 

A number of the older authorities favor the rule or principle of the cannon shot ; 
but, since modern aeronautic cannon are said to have a vertical range of 5500, 
7400, and even 11,500 meters, this would render freedom in the upper zone wholly 
illusory. Besides, the analogy between the marine league or range of cannon shot 
as applied to the ocean and aerial space soon breaks down. In the case of the ocean 
the reasons for control decrease in proportion to the distance from the shore; in 
the case of aerial space, the danger (as, cp. from the weight of falling bodies) may 
increase in proportion to the distance from the earth's surface. 



AERIAL SPACE IN TIME OF PEACE 235 

the land surface of the earth which is inhabited by peoples 
organized into political communities. 

The nature of this control appears to be analogous to that 
exercised over a State's territorial waters, more particularly the 
marginal seas, straits, and international rivers. Foreign air- 
ships should be granted a right of innocent or inoffensive passage ; 
and, in general, the same rules must be applicable to them in 
the territorial atmosphere as are applied to foreign vessels in 
territorial waters. Their nationality will doubtless be deter- 
mined by their flag or registry ; and, though in principle sub- 
ject to the jurisdiction of the State above whose territory they 
pass, they will be practically exempt from its criminal juris- 
diction except in respect to crimes which affect the interests or 
disturb the peace of its inhabitants.^ 

BmUOGRAPHT 

Law of A^ikl Space in Time of Peace. ~ * Baldwin, in 4 i4. 7. (1910), 
49 ff. ; Bluntschli, Art. 632 bis; *Bonfils (Fauchille), Nos. 531, i-io; 
Blachere, Vair vote et le droit (191 1); Dupuis, in 14 R. D. /. P. (1907), 
373 ; * FauchiUe, mS R, D, I. P. (1901), 414 ff., and 17 R, Z>. /. P. (1910), 
55 ff. ; Ibid.f in 19 Annuaire (1902), 19-86; Ihid^/m 21 Annuaire (iqio6), 
76 ff. ; Ibid,, in 24 Annuaire (191 1), 23 ff., 303 ff. ; Fleischmann, Grundge- 
danken eines Luftrechls (1910) ; Gareis, in MUnchner neusten NackrichUn 
(17 Feb., 1909), Nr. 39 ; * Grtinwald, Das Luftschif, etc. (1908) ;/Wd., in 24 
Arckiv Oefent, Rechts (Heft 2, 1909), 190-201, and 477 ff. ; Hazeltine, The 
Law of the Air (191 1) ; Hilty, in 19 Archiv des Offent. Rechts (1905), 87 ff. ; 
Holtzendorff, in 2 Handbuch; 230; Julliot, De la propriety du domain 
airien (1909) ; Jnrisch, GrundzUge des Luftrechts (1877) » * Kausen, Die 
Radiotelegraphie im Volkerrecht (1910) ; Kenny, in 4 Zeitschrift (1910), 
472 ff. ; Kohler, in 4 Zeitschrift (1910), 588 ff. ; * Kuhn, in 4 u4. 7. (1910), 
109 ff. ; Liszt (3d ed.), § 9, p. 76; Loubeye, Les principes du droit airien 
(191 1); Lyklama, Air Sovereignty (1910); * Meili, Das drahtlose Teleg- 
raphie (1908) ; Ibid.y Das Luftschif, etc. (1908) ; * Meurer, Luftschifahrts- 
recht (1909) ; Ibid., in 16 R. Z>. /. P. (1909), 76 ff. ; Meyer, Die Erschliessung 
des Luftraumes, etc. (1909) ; 2 M6rignhac, 398 ff. ; i Nys, 523-532 ; Ibid,, in 
34 R. D. /., 501 ff. ; Ibid., in 19 Annuaire, 86-114 ; i Rivier, 140 f. ; Rolland, 
in 13 R. D. I. P. (1906) 58 ff. ; Schneeli, Radiotelegraphie und Volkerrecht 
(1908), {§ 7-13; Sperl, in 18 R. D. I, P. (1911), 473 ff-; Schroeder, Der 
Luftflug, etc. (191 1); Ullmann (2d ed.), § 86, p. 289, and § 147, pp. 426- 
427 ; Wilson and Tucker, § 57 ; Wilhelm, in 18^ J. I, D. (1891), 440 ff., 
171 ff. ; Wilson, ItU. Law, §§ 30, 43; Ibid., in 5 Am. Pol. Sci. Rev. (1911), 
171 ff. For fuller Bibliographies, see Bonfils, Kausen, Meyer, Sperl, etc. 

" This would at least be the case with private airships. Public airships will 
probably enjoy the rights and privileges of so-called exterritoriality, as in the case 
of public vesseb or warships. 



CHAPTER XVI 

INDIVIDUALS AS OBJECTS OF INTERNATIONAL LAW 

222. Individuals as Objects of the Law of Nations. — As 
stated in an earlier chapter/ individuals are objects rather than 
subjects of International Law. Inasmuch as their international 
rights and obligations are mainly secured and determined by 
the States or political communities to which they belong, their 
nationality or political allegiance is a matter of the first im- 
portance. 

223. What is Nationality? — Nationality is usually defined ' 
as the status or tie which unites an individual to a particular 
State. It involves reciprocal relations of allegiance and pro- 
tection, and generally, though not always, implies that the 
individual clothed with a national character is a citizen' or 
subject of the State to which he owes allegiance. This national 
character is determined by municipal or State Law, and it fre- 
quently happens that several States lay claim to the allegiance 
of the same individual (this is a case of so-called double nation- 
ality) or that an individual is left without any nationality 
whatever (the Germans call it Staaislos or HeimaUos). In the 
former case conflicts between States are apt to arise which caU 

' See supra, note on pp. 92-93 n. See, in addition, Diena in 16 ^. D. I. P. 
(1909), 5-7 ff. See especially i Oppenheim, §§ 288-292, for a good discussion and 
references on this point. 

' Nationality as here defined is a legal temi and should be distinguished from the 
vague political or ethnological sense in which it is often used. Thus we speak of 
an individual as possessing German, Italian, Polish, or even Jewish nationality, 
without any necessary reference to a particular State. 

' The terms citizen and subject have the same meaning in International Law. 
Citizen is usually applied to members of a State having a republican form of govern- 
ment ; subject to those with monarchical institutions. Thus we speak of British 
subjects and American citizens. Since individuals who are not citizens in the strict 
or narrow sense are sometimes clothed with a national character, the term national 
is now preferred by nuuiy statesmen and publicists. 

236 



INDIVIDUALS AS OBJECTS 237 

for the exercise of the greatest tact and forbearance. In the 
latter case injustice may result to those individuals who are in 
a sense outlaws from the standpoint of International Law. 

I. Native-born Citizens or Subjects 

224. Native-bom Citizens. — The most numerous and im- 
portant class of individuals over whom a State claims juris- 
diction are native-bom citizens or subjects. But when it comes 
to the application of this term, there is a wide divergence in 
theory and practice. 

All modem legislation supports the principle that children 
bom within the territory of a State to parents who are them- 
selves citizens are clothed with the nationality of their parents. 
But there is not the same unanimity in respect to those bom 
outside the State's territory to parents who are citizens, nor in 
respect to those bom within the State's territory to alien parents. 

225. The jus soU. — According to the feudal principle of the 
jus soU,^ nationality is primarily determined by the place or 
locality of birth. Consequently, children bom to alien parents 
within the State's territory are clothed with its nationality. 
If carried out to its logical conclusion, this system would 
also require that those bom outside the State's territory to 
parents who are citizens should not inherit the nationality of 
their parents. But this conclusion is not drawn nowadays.' 
Modem States are practically unanimous in claiming for chil- 
dren bom abroad to its citizens the nationality of their parents.* 

The jus soli prevails in principle in Great Britain, the United 
States, Portugal, and most of the States of Latin America. 

226. The jus sanguims. — According to the Roman and early 
Germanic principle of the jus sanguinis, nationality is based 

* The jus soli b of feudal origin and was originally based upon the territorial 
relation of a fief to its lord. During the Middle Ages it gradually supplanted the 
more ancient jus sanguinis, which was again given wide currency in Europe through 
the adoption of the Napoleonic Code. 

* However, this seems to have been the doctrine of the French publicists of the 
old r£gime. See the citation from Bacquet, in Weiss, Manuel de droit int. privi^ 
p. 7, and I Train f 43. 

* But many American States (including the United States) only actually daim 
those who show an intention to reside in the country of their origin. Others grant 
them the right of option after thQr have attained their majority. 



238 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

primarily upon descent or parentage.^ Thus, according to this 
system, children bom outside a State's territory to parents who 
are citizens, are clothed with the nationality of their parents,, 
whereas those bom within a State's territory to alien parents 
are regarded as foreigners. 

This system prevails in Germany, Austria, Hungary, Sweden^ 
and Switzerland. 

227. Mixed Systems. — A mixed system prevails in France^ 
Belgium, Holland, Greece, Turkey, Russia, Spain, Italy, etc. 
In France, e.g. (which may be regarded as a type of this class 
of States), every child of a Frenchman is held to be of French 
nationality, whether bom in France or abroad; whereas an 
individual bom in France to alien parents, and not domiciled 
in France at the age of majority, is regarded as a foreigner. 
But until the completion of his twenty-second year, such an 
individual has the option of making an act of submission by 
declaring his intention to acquire a French domicile; and if 
he acquires such a domicile within a year after his act of sub- 
mission, he may claim French nationality by means of a decla- 
ration which will be registered with the Ministry of Justice.*^ 

7 The jus sanguinis was not merdy a Roman and early Gennanic OQnceptkm^ 
but this principle of inheritance or descent may be said to have been that of antiq- 
uity itself. As stated above, it was incorporated into the Napolcook Code, and 
was thus given a wide currency in Europe. 

The Civil Code of .\aix)Ieon (1804) does not declare in express terms that chil- 
dren inherit the nationality of their parents. Art. 9, S i gave to a child bom to 
alien parents on French soil, and who is not domiciled in France at the time of his 
majority (those having French domicile being considered French unless they have 
made a contrary choice), the right to choose French nationality within a year after 
attaining his majority, provided he acquires a French domicfle within a year after 
his declaration. 

Art. 10, § I simply declares that ''every child bom of a Frenchman in a foreign 
country is French." The new Art 8, § i** of the Civil Code (law of i88g) is thus 
conceived : "Any individual bom of a Frenchman in France or abroad is French." 
For the text of the law of 1889, see Andreani, La condition des iirangers en France 
(1907), ch. 3, pp. Ill ff., or 2 Sieber, Das Staatsburgerrecht, etc. (1907), 86 ff. 

"Every individual bom in France to foreign parents (one of whom is himself 
bom there) is French, saving the privilege (if it is the mother who is bom in France) 
of declining French nationaJity within the year following his majority." Art. i, 
§ ^** of the law of 1893. See Andreani, p. 123. For an English translation of tl:e 
Jaws of 1899 and 1893, see Report on Citizenship, etc., 72 House Doc., No. 326^ 
Sgth Cong., 2d sess. (1906-1907), 317 ff. 

* Cogordan, La nationaliU (2d ed.), 81. For a commentary on Art. 9 of the 
Civil Code and Art. 8, § 4** of the law of i88q, see Cogordan, { 5. This article is 
slightly modified by the law of 1893. ^^ Andreani, 123 f. 



INDIVIDUALS AS OBJECTS 239 

Every individual bom in France to a foreigner and who is domi- 
ciled there at the time of his majority is regarded as French 
unless, within the year following his majority, he has declined 
French nationality and proved that he has preserved the national- 
ity of his parents by means of an attestation drawn up in due 
form by his government.' 

Some special comments on the practice of Great Britain and 
the United States may be found useful. 

228. Native-bom British Subjects. — England formerly stood 
almost exclusively upon the ground of the jus solij and claimed 
the allegiance of all children bom to aliens on British soil or 
within British jurisdiction/^ as well as the children bom to 
British subjects abroad. But since 1870 the right of legitimate 
children bom to alien parents within British jurisdiction to 
acquire the nationality of their parents by means of a declara- 
tion of alienage at the age of majority, is recognized. 

Since the passage of the Naturalization Act of 1870, the 
following may be regarded as native-bom British subjects: 

" (i) Persons bom within the British dominions or on board 
British ships on the high seas or in foreign territorial waters, 
whether bom of British or alien parents, and whether legitimate 
or illegitimate, provided that, if legitimate children bom of 
alien parents, and if of the age of twenty-one years or more, 
they have not made a declaration of alienage, in accordance 
with the provisions of the Naturalization Act of 1870." 

' Cogordan, 84. He must also produce a certificate showing that he has com- 
plied with the military law of his country. 

Some minor points in the laws on nationality may here be noted : The nation- 
ality of foundlings is governed by the jus soli. Illegitimate children usually 
inherit the nationality of their mother, though they may acquire the nationality of 
the father through subsequent legitimation. The nationality of the wife is gener- 
ally merged in that of her husband. Thus, when a woman marries a foreigner, 
she usually loses her former nationality. 

'^ There were, however, several exceptions : (i) Children of foreign ambassadors. 
(2) Children bom to an enemy father at a place within the British dominions, but in 
military occupation of an enemy State. (3) Children of persons attainted of high 
treason, or in the actual service of any foreign prince or State at enmity with 
Great Britain at the time of the birth of such children. See Hall, Foreign Powers 
and Jurisdiction of the British Crown -(1894), 18-IQ n. 

Children bom abroad to any whose fathers are in the military service of the Crown 
have also been considered British subjects, at least since the statute of Edward III, 
as also those bom on board a British ship on the high seas. Piggott, Nationality ^ 
J, 42-46. 

^' Thus, ''a child bom of foreign parents even during an accidental stay is fully. 



240 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

" (2) Legitimate children and grandchildren by male descent, 
of British subjects, bom out of the dominions of the crown.^ 

^' (3) Persons whose father, being a British subject, or whose 
mother being a British subject and a widow, has become nat- 
uralized during the infancy of such persons in a country under 
the laws of which infant children do not become naturalized 
by the naturalization of their parents; and like persons, not- 
withstanding that they have become naturalized by the nat- 
uralization of their parents, if they have not during infancy 
been residetUy^ within the meaning of section 10 of the Act 
of 1870, in the country where the father or mother is natural- 
ized." " 

229. Native-bom Citizens of the United States. — In the 
United States, the principle of jus soli of the common law was 
followed, and it was held that '' children bom in the United 
States of alien parents, who have never been naturalized, are 
native citizens of the United States." ^ 

The Civil Rights Act of 1866 (the first law containing a pro- 
vision on this subject) declared : " All persons bom in the 
United States and not subject to any foreign Power ^ excluding 
Indians not taxed, are declared to be citizens of the United 
States." ^* But the modif)ring phrase set in italics appears to 



and until the age of twenty-one years, irretrievably a British subject." Hall, o^. 
cit.^ 20. 

^' "4 Geo. II, c. 21, and 13 Geo. Ill, c. 21. The meaning of these Acts was 
decided in De Geer v. Stone (22 Ch. D., 243) to be that * the grandchild bom abroad, 
whose father was also bom abroad, being respectively grandchild and child of a 
man who was by the common law a natural bom British subject, would be himself 
a natural bom British subject, but that his children bom abroad would be aliens.' " 
Hall, ig n. But Great Britain does not pretend to afford protection to such sub- 
jects if claimed by the country in which they are bom. Ibid., 66. 

" On the probable meaning of the term resident in this connection, see Hall, 
Jurisdiction^ etc., § 17. 

1* Ibid.f pp. 18-19. Subject to certain exceptions, such as foreign naturalization 
or a declaration of alienage, the following are the main classes of natural bom 
British subjects: (a) Children bom within the dominions. (6) Children bom 
abroad of a father who falls within category a. (c) Children bom abroad of a per- 
son who falls within category b. For this classification, see i Piggott, NaHomdity, 

" 3 Moore, Digest, p. 277. 

** Revised Statutes, § 1992. See Moore, op cil. The italicized phrase appears to 
have meant that if it be shown that one bom in the United States owes allegiance 
to another State, he is not a citizen of the United States. Art. *' Nationality," 



INDIVIDUALS AS OBJECTS 241 

have been rendered null and void by the adoption of the Fourteenth 
Amendment to the Constitution of the United States : " All per- 
sons bom or naturalized in the United States, and subject to 
the jurisdiction thereof , are citizens of the United States and of 
the State wherein they reside." *^ 

The Act of Congress of 1855 declared : " All children hereto- ' 
fore or hereafter bom out of the limits and jurisdiction of the 
United States, whose fathers were or may be at the time of their 
birth citizens thereof, are declared to be citizens of the United 
States ; but the rights of citizenship shall not descend to children 
whose fathers never resided in the United States.^' ^' 

in 2 Lalor's Cyclopedia. A dififerent view is held by Van Dyne, CUi$enship, 
No. 2. 

For a review of the juridical dicta to the effect that the phrase *' subject to the 
jurisdiction thereof" in the Fourteenth Amendment also included children who bore 
a foreign allegiance jure sanguinis, see Moore's A m. Notes in the first edition of 
Dicey 's Conflict of Laws (1896), 201. These valuable notes have unfortunately 
been omitted in the second edition (1908) of this excellent work. 

" The phrase set in italics does not appear to exclude children subject to a foreign 
Power by reason of a jure sanguinis allegiance, but merely excludes children bom in 
the United States of diplomatic agents and Indians still living in tribal relations. 
It is also believed to exclude children of alien enemies in hostile occupation of the 
United States. 

In the leading case of United States v. Wong Kim Ark (1988), 169 U. S. 649, our 
Supreme Court held that "a child bom in the United States, whose parents, though 
of Chinese descent and subjects of the Emperor of China, are domiciled in the 
United States, is a citizen of the United States by birth, within the meaning of the 
Fourteenth Amendment." 3 Moore, Digest^ p. 280. See also In re Look Tin Sing 
(1884), 21 Fed. Rep. 905 ; * £x parte Chin King (1888), 35 Fed. Rep. 354, and Scott 
Cases, 370; and the other cases cited in 3 Moore, 280, and i Willoughby, § 125. 

The decisions of the Department of State do not appear always to have agreed 
with those of the courts. For example, in Hausding*s Case (1885), Secretary Fre- 
linghuysen supported Mr. Kasson, U. S. minister to Germany, in the opinion that one 
Ludwig Hausding, who was bom in the United States of a Saxon subject, but who 
had resided in Saxony since his infancy, was not entitled to a passport as a citizen 
of the United States. And this in spite of the fact that his father hsid, subsequently 
to his birth, become a naturalized citizen of the United States. "The fact of birth 
under circumstances implying alien subjection, establishes of itself no right of citi- 
zenship." This case may possibly be harmonized with the Chinese cases, dted 
above, on the theory that Hausding had never shown any fixed or definite intention 
to retum, such as was manifested in the case of the subjects of the Emperor of China. 
But the fact remains that the State Department gave the Fourteenth Amendment 
a different construction from that given by the Federal Courts. This former con- 
struction of the State Department has, however, since been abandoned. 

On Hausding's Case, see 3 Moore, 278-279, and Snow, Cases, 222-223, For 
two other spmewhat similar cases, see 3 Moore, 279-280. 

** i 1993 of the Revised Statutes of the United States, incorporating the pro- 



242 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

The Act of 1907 declares: "All children born outside the 
limits of the United States who are citizens thereof in accordance 
with the provisions of section 1993 of the Revised Statutes of 
the United States and who continue to reside outside the United 
States shall, in order to receive the protection of this Govern- 
ment, be required upon reaching the age of eighteen years to 
record at an American consulate their intention to become 
residents and remain citizens of the United States and shall be 
further required to take the oath of allegiance to the United 
States upon attaining their majority." ^' 

II. Naturalized Citizens or Subjects 

230. Naturalized Citizens. — Another important class of 
citizens, especially in the United States, are naturalized citizens 
or subjects. These are " persons between whom and the State 
the tie of allegiance has been arti&cially created by a process 
termed naturalization." " " Naturalization in the narrower sense 
of the term, in contradistinction to naturalization through mar- 
riage, legitimation, option, domicile, and appointment as govern- 
ment official, may be defined as the reception of a foreigner into 
the citizenship of a State through a formal act on application of the 
individual." ^^ It is in this narrower sense that we shall use the 
term. 

visions of the act of Feb. 10, 1855. See 3 Moore, p. 282. Hence an illegitimate 
child bom abroad of an American woman is not a citizen of the United States. The 
provision set in italics does not apply to members in Turkey of a community of 
citizens of the United States (for these enjoy extraterritorial privileges), and "it 
is believed that the limitations of the act do not apply to a countiy like Samoa where 
citizens of the United States, although beyond the limits thereof, are not outside 
its jurisdiction, but subject thereto under express conventional provisions." 3 
Moore, 287-288. 

*^ § 6 of The Act of 1907 in " Reference to the Expatriation of Citizens and their 
Protection abroad. Se« Supplement to i ^. /. (1907), 259 ; or Van Dyne, Natural- 
ization j App., 440. 

§ 5 of this Act declares : "That a child bom without the United States of alien 
parents shall be deemed a citizen of the United States by virtue of the naturaliza- 
tion of or resumption of American citizenship by the parent : Provided^ That such 
naturalization of or resumption takes place during the minority of such child; 
And provided further y That the citizenship of such minor child shall begin at the time 
such minor child begins to reside permanently in the United States." 

2^ Lawrence, Principles (3d ed.), § 115. Cf. Ibid. (4th ed.), § 95. It corre- 
sponds to the ancient practice of adoption. 

" Slightly adapted from i Oppenheim, § 303. Cf. Ibid.^ § 299. In the wider 



INDIVIDUALS AS OBJECTS 243 

Naturalization is regulated by municipal or State law, but it is 
of special importance to students and statesmen, since the con- 
^ct of legislation on the subject may give rise to serious inter- 
national conflicts. 

Some authorities and legislators have maintained that the indi- 
vidual has a natural right of expatriation, i.e, to transfer his alle- 
giance and claim to protection from one sovereign to another 
at will, and that this right is guaranteed by the Law of Nations. 
The United States has especially championed this view since 
1868,^^ even at times imdertaking to protect its naturalized citi- 



^enae, naturalization may take place without special formalities, as where a foreign 
wife acquires the nationality of her husband. 

There is also a process of collective naturalization, as when a country or province 
is annexed or incorporated by another. See especially 3 Moore, Digest ^ §§ 379* 
380; and Van Dyne, Naturalization ^ ch. 4. Several of the Latin-American States, 
as, e.g. Brazil, Mexico, Peru, consider such acts as the purchase of real estate, or 
residence for a term of years, as ipso facto evidence of naturalization. 3 Moore, 
§ 318; Hall, Foreign Pffw&rs and Jurisdiction, etc., 49-50 n.; and 2 Calvo, §§ 
643-664 (on Venezuela). 

" Roused to a fever heat of excitement by the refusal of England to grant the 
right of trial by mured juries to naturalized American citizens accused of Irish 
(Fenian) outrages, Congress passed the famous Act of 1 868 declaring expatriation to 
be "a natural and inherent right of all people," and denouncing as inconsistent 
with the fundamental principles of the republic "any declaration, instruction, opin> 
ion, order, or decision of any officers of this Government, which denies, restricts, 
impairs, or questions the right of expatriation." It was also enacted that "all 
naturalized citizens of the United States, while in foreign States, are entitled to, 
and shall receive from this Government the same protection of persons and property 
that is accorded to native-bom citizens in like situations and circumstances." 3 
Moore, Digest, § 439, or Scott, Cases j 375. 

Prior to 1868 the courts and legal authorities in the United States accepted the 
common-law doctrine that a subject or citizen cannot renounce his allegiance with- 
out the consent of his Government. See especially the Case of MacDonald (1747), 
and William^ s Case, Scott;, Cases, 370 and 372; the judicial opinions on Ballard's 
and Talbot's citizenship, in 3 Moore, § 532. For references to the older authorities, 
-see /W4., 5 431, p. 552. 

Not until 1 845-1 848, when James Buchanan was Secretary of State, did our 
State Department claim that naturalized American citizens were entitled to the 
«ame degree of protection as native-bom citizens in the country of their origin. 
After 1848 Secretary Webster reverted to the earlier mle laid down in 1840 by Mr. 
Wheaton, minister to Pmssia, in the case of Mr. Knoche, a naturalized American 
citizen who had been forced to enter the Pmssian army after his return to Pmssia. 
"Had you remained in the United States or visited any other foreign country except 
Prxissia on your lawful business, you would have been protected by the American 
authorities at home and abroad, in the enjoyment of all your rights and privileges ad 
a naturalized citizen of the United States. But, having returned to the country of 
your birth, your native domicile and national character revert (so long as you remain 



244 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

zens without respecting the rights of the country of thdr origin, 
but, within recent years, our Government appears to have abaii- 
doned its extreme and indefensible attitude in this matter. 

in the Prussian dominions), and you are bound in all req>ects to obey the laws 
exactly as if you had never emigrated/' 3 Moore, p. 564. 

Replying to an inquiry' whether M. Depierre (a native of France, but a natural- 
ized citizen of the United States) could "expect the protection of this Government in 
that country, when proceeding thither with a passport" from the Department of 
State, Secretary Webster said in 1852 : "If, as is understood to be the fact, the Gov- 
ernment of France does not acknowledge the right of natives of that country to 
renounce their allegiance, it may lawfully claim their services when found within 
French jurisdiction." 3 Moore, p. 567. Similar ground was taken by Secretary 
Everett in 1853, Secretary Marcy in 1855, and Attorney-General Gushing in 1856. 

During Buchanan's Presidency, the State Department again changed its tone. 
In 1859, 5>ecretary Cass instructed Mr. Wright, American Minister to Prussia, to 
demand the immediate discharge of Christian Emsif a naturalized American dtizen, 
from compidsory military service in Hanover on the ground that the offense charged 
— evasion of military service — had not been committed before the emigration of 
Ernst to the United States at the age of nineteen. In these instructions, which were 
issued in circular form to other Governments, President Buchanan (the views 
expressed were really his) took the broad ground that " the moment a foreigner 
becomes naturalized his allegiance to his native country is severed forever. He 
experiences a new political birth. A broad and impassable line separates him from 
his native coimtry . . . . Should he return to his native country, he returns as an 
American citizen and in no other character. In order to entitle his original govern- 
ment to punish him for an offense, this must have been committed while he was 
subject and owed allegiance to that government. ... It must have been of such a 
character that he might have been tried and punished for it at the moment of his 
departure." 3 Moore, pp. 574-575- 

During the Civil War Secretary Seward permitted the controversy to rest. It 
was soon afterward revived in coxmection with the Fenian outrages in Ireland and 
led to the Act of 1868, cited above. In the same year the historian Bancroft, then 
United States Minister to Prussia, negotiated a Treaty of Naturalization with 
Prince Bismarck in behalf of the North German Confederation which had been 
formed in 1866 and which four years later (1870) developed into the German 
Empire. It was followed by the conclusion of similar treaties with other German 
States the same year (1868). 

The Bancroft or German treaties provide for the reciprocal recognition of natural- 
ization combined with five years' uninterrupted residence. But if the naturalized 
emigrant returns to the country of his origin, he is liable to punishment for offenses 
(such as evasion of military service) committed before his emigration unless the 
liability has ceased through prescription. If the returning emigrant renews, without 
intent to return, his residence in the old country, he shall be deemed to have 
renounced his naturab'zation in the new ; and a presumption of an intention not to 
return and of consequent loss of the newly acquired nationality arises after a resi- 
dence of more than two years in the old country. 

For various Naturalization Conventions to which the United States is a party, 
see Van D)me, Naturalization y App., 44 ff. 

The Treaty of Naturalization between the United States and Great Britain 
(1870) merely provides for a reciprocal recognition of the naturalization of British 



INDIVIDUALS AS OBJECTS 245 

Though nearly all States now permit the expatriation of their 
citizens,^ they do so at their own discretion. Consequently, the so- 
called right of expatriation is not a principle of International Law. 
231. Naturalization in Great Britain. — Until 1870, England 



subjects or American cittzens, and the resumption of British or American national- 
ity. For commentary, see i Piggott, Nationalily, ch. 17. 

The United States has also concluded Treaties of Naturalization with Belgium 
(1868), Sweden and Norway (1869), Austria-Hungary (1870), Ecuador (1872), 
Denmark (1872), Hayti (1Q02), San Salvador (1908), Portugal (1908), Honduras 
(1908), Uruguay (1908), and Peru (1907). These treaties are mainly drawn on the 
line of the German treaties, referred to above. The treaties with San Salvador, 
Portugal, Uruguay, and Peru, which are of special interest as illustrating the present 
views of our Government, are printed in 2, 3, and 4 Supplement to A. J, (1908- 
1910), 342-343, 159-160, 284-285, 134-135 respectively. 

Owing to their stringent enforcement of military conscription, our main conflicts 
have been with Germany, Austria-Hungary, and Russia. These countries fre- 
quently resort to expulsion of naturalized Americans even in apparent violation of 
treaty rights. But our Government appears now to have receded from the extreme 
and untenable positions which it has sometimes assumed, except in the case of the 
Russian Jews (igii). 

For the subject-matter of this note, see especially 3 Moore, Digest, particularly 
§§ 39o~407, 431-440, 453 ; Mooitj American Diplomacy, ch. 7 ; and Art. on " Nation- 
ality," in 2 Lalor, Cyclopedia, 

^ Russia and Turkey seem to be the only countries which to^lay deny to their 
natural-bom citizens or subjects the right of expatriation without special permis- 
sion of the Government. The Argentine Republic refuses to allow its citizens to 
separate from the State in any case. 

French nationality maybe lost through naturalization abroad, declination, accept- 
ance of public office under a foreign government without permission of his own 
government, or the acceptance, without authorization of his government, of foreign 
military service. 

German nationality may be lost by release, dismissal, marriage (in certain cases), 
legitimation, or residence of ten years abroad. 

In Italy citizenship is lost by express renunciation and subsequent emigration, 
by naturalization in a foreign State without permission of the Italian Government, 
or by foreign military service. But expatriated Italians are not absolved from the 
obligations of military service. 

By Austrian law those who emigrate with permission lose their character as 
Austrian subjects, and are regarded as foreigners; those emigrating without per- 
mission lose their rights as subjects of Austria, but their rights as naturalized for- 
eigners are apparently disregarded. 

Hungarian nationality is lost by liberation from allegiance granted by the State 
or by unauthorized and uninterrupted absence during ten years. 

Spain recognizes the naturalization of Spaniards abroad, but claims that this does 
not free them from obligations to Spain, unless it shall have been obtained with 
the knowledge and consent of the Spanish government. 

In most countries naturalization abroad frees the one naturalized from obliga- 
tions toward the mother countr>'. 

For the subject matter of this note, see especially : Hall, Foreign Jurisdiction, 



246 . ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

held to the equally indefensible doctrine of perpetual allegiance 
— nemo potest exuere patriam — and refused to recognize any- 
right of expatriation on the part of her subjects. But she 
abandoned this illiberal attitude in 1870, when she not only 
recognized the right of expatriation of her own subjects, but 
provided improved facilities for the naturalization of foreigners.** 

" By the seventh section of the Naturalization Act of 1870, 
any alien who has resided in the United Kingdom for not less 
than five years, or who has been in the service of the Crown 
for a like period, and who intends to reside * in the United King- 
dom or to serve imder the Crown may, at the discretion of a Secre- 
tary of State, be granted a certificate of naturalization which 
carries with it all the rights and obligations of a British subject 
within the United Kingdom." * 

'^ An alien to whom a certificate of naturalization is granted 
shall in the United Kingdom be entitled to all political and 
other rights, powers, and privileges, and be subject to all obliga- 
tions, to which a natural-bom British subject is entitled or 
subject in the United Kingdom, with this qualification, that he 
shall not, when within the limits of the foreign State of which he 
was a subject previously to obtaining his certificate of naturali- 
zation, be deemed to be a British subject unless he has ceased 
to be a subject of that State in pursuance of the laws thereof, 
or in pursuance of a treaty to that effect." ^ 

etc., § 23; Ibid.f Int, Law (6th ed.), 227 ff. ; and 3 Moore, Digest, §§ 441-465. 
See also Lehr, La nationaliti (1909), Nos. 14-23, and passim; Report on Cit- 
izenship, Expatriation, and Protection Abroad, 72 House Doc., No. J26, 59th Cong. 
2d sess. (1906- 1 907), 270 ff.; and Webster, Naturalization, 128 ff. 

** Prior to 1844 an alien could only be naturalized by special Act of Parliament 
or by letters of denization. The Act of 1844 permitted naturalization at the dis- 
cretion of a Secretary of State. 

*^ It is doubtful whether the phrase intends to reside has any particular meaning 
or importance. In the case of M. Bourgeoise (L. R. 41 Ch. D., 310), who spent the 
remainder of his life in France after having been naturalized in England, it was not 
even mentioned. See i Piggott, Nationality, loi f. and 122 ff. 

*• Hall, Foreign Jurisdiction, etc., § 18. 

" § 7 of the Naturalization Act printed in Hall, App., 253; and i Piggott, 291. 
The meaning of this paragraph seems to be that naturalized British subjects are 
to have the same rights, etc., as native-bom subjects, both at home and abroad, 
except in the country of their origin. But the phraseolog>', particularly the repe- 
tition of United Kingdom, is vague and ambiguous. See Hall, § 18; and i Piggott, 
I 13-126. 

In a Circular addressed (in 1874) to the Colonial Governments, it is stated that 



INDIVIDUALS AS OBJECTS 247 

Children bom to naturalized parents in the United Kingdom 
are of course natural-bom British subjects according to the jus 
soli, and those who become resident in the United Kingdom with 
their naturalized father, or with their mother if she is a widow 
at the time of her naturalization, are naturalized British sub- 
jects. But children bom to naturalized parents abroad and 
continuing to reside there are presumably aliens.^ Married 
women are deemed subjects of the State to which their 
husbands belong; consequently, they acquire the national- 
ity of their naturalized husbands, at least in the United 
Kingdom. 

232. Loss of British Nationality. — Since 1870, '^ the status 
of a British subject may be lost — 

" (i) By natural-bom British subjects of British origin : 

" (a) Through [voluntary] naturalization in a foreign 
State; 

'' (i) By declaration of alienage, if bom out of British domin- 
ions of a father being a British subject ; 

'^ (c) Through marriage, in the case of a woman, with an 
alien. 

" (2) By natural-bom British subjects of foreign origin, and 
by naturalized persons : 

" (a) By declaration of alienage ; 

" (J) Through marriage, in the case of a woman, with an 
aUen." » 

233. Naturalization in the United States. — Beginning with 
the Act of 1790, Congress has passed various statutes for the 
naturalization of aliens. The present law, which was enacted 
on June 29, 1906, provides : 



*t 



Her Majesty's Government are advised by the Law Officers of the Crown that 
the operation of the above enactments is clearly confined to the United Kingdom, 
and that a certificate of naturalization, granted under either the Acts of 1S44 or 
1870, confers upon an alien no rights or pri\nleges in a British Colony." Piggott, 
119 and 129. Hall {op, cii.^ p. 25) claims that '* naturalized persons have been 
invariably regarded as occupying a position identical with that of natural-bom 
subjects of the Crown in all States other than their State of origin." 

** This is the opinion of Hall, § 19, and Dicey in 5 Law Quar, Rev.^ 438. It is 
not shared by Westlake (I, 228 n.). Piggott {Nationality , I, 126) leaves one in 
doubt. 

** Hall, Foreign Jurisdiction^ etc., § 25. The Act of 1870 requires as conditions 
for recognition of the validity of the expatriation of British subjects that the act 



248 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

(i) That an alien desiring to be naturalized '^ shall declare on 
oath before the clerk of any court authorized by this Act to 
naturalize aliens,^ or his authorized deputy, in the district in 
which such alien resides, two years at least prior to his admis- 
sion, and after he has reached the age of eighteen years, that it 
is his bona fide intention to become a citizen of the United 
States, and to renounce forever all allegiance and fidelity 
to any foreign prince, potentate, state, or sovereignty, and 
particularly, by name, to the prince, potentate, state, or sover- 
eignty, of which the alien may at the time be citizen or sub- 
ject." »? 

(2) Not less than two years nor more than seven years 
after he has made such declaration of intention,"^ he shall file a 
petition verified by the affidavits of at least two credible 
witnesses — citizens of the United States — setting forth that 
"he is not a disbeliever in or opposed to organized govern- 
ment or a member of or affiliated wiUi any organization or body 
of persons teaching disbelief in or opposed to organized 
government, a polygamist or believer in the practice of 
polygamy, and that it is his intention to renounce, etc., . . . 
and that it is his intention to reside permanently in the United 

oLaLCS. ■ ■ • 

(3) He shall, furthermore, " declare in open court that he 

be voluntary on the part of the individual, that he be not under any disability, 
and that he reside in the foreign State at the time of his naturalization ; but it 
does not prescribe any formalities or rules, such as length of residence, etc On 
the Conditions of Naturalisation, cf. Hall, op, cii., §§ 25-26, and i Piggott, 
136 ff. 

An especially valuable commentary on the Naturalization Act of 1870 is the 
Report of the Interdepartmental Committee of iqoi {Par. Paper (1901, Cd. 723). 
It is printed in the Report on Citizenship, etc., 72 House Doc, No. 236, 59th Cong. 
2d sess. (1906-1907), 343-361. 

*^ Naturalization in the United States is a judicial act. For a list of courts 
having jurisdiction, see Van Dyne, Naturalization , App., 493 ff. 

" Sec. 4 of the Act of 1906 (34 Stat, at L. 596) printed in Supplement i to i4. /. 
(1907), 31 fF. ; Van Dyne, op. cit., 417 ff. ; or Naturalization Laics and Regulations, 
Nov. II, 191 1, issued by the Department of Commerce and Labor. ' 

*^ According to the law of 1906, the declaration of intention may be made imme- 
diately after the alien's arrival in the United States, but it must be made at least two 
years before his admission to citizenship. The life of the declaration is limited to 
seven years. In any case five years' residence in the United States and one year 
within the State or Territory where the application is made is necessary before a 
certificate of dtizenship can be obtained. 



INDIVIDUALS AS OBJECTS 249 

• 

will support the Constitution of the United States"; prove 
that '' he has resided continuously within the United States 
five years at least, and within the State or Territory where such 
court is at the time held one year at least, and that during that 
time he has behaved as a man of good moral character, attached 
to the principles of the Constitution of the United States . . ." ; 
and, finally, that he expressly renoimces any hereditary title or 
order of nobility which he may have borne in the State of his 
origin." 

234. Persons Capable of Naturalization in the United States. 
— Those capable of naturalization in the United States are 
" white persons " and " persons of African descent." ** 

It has been judicially held that neither Chinese, Japanese, Bur- 
mese, Hawaiians, nor American Indians can be naturalized under 
the statutes.** Alien women, whether married or unmarried, 
may be naturalized in the same manner and under the same 
conditions as alien men, and the naturalization of the husband 



There are several exceptions to these rules. xCo declaration is required and one 
year's residence is sufficient in the case of aliens who have performed honorable 
service in the army or navy of the United States. Widows and minor children of 
deceased aliens who have declared their intention may be naturalized without mak- 
ing such declaration. Residence in Hawaii, the Philippine Islands, or Porto Rico 
IS accepted as fulfilling the five-year residence requirement. An exception is also 
made in favor of an alien seaman who has declared his intention and served three 
years on board a United States merchantman. He may at once be admitted to 
citizenship. Van Dyne, op. cit.^ 61 ff., 74 ff. 

" Sec. 4 of the Act of 1906, op. cit. Sec. S also provides that "no alien shall 
hereafter be naturalized or admitted as a citizen of tJie United States who cannot 
speak the English language, "unless he is physically unable to speak." 

Sec 15 provides that " if any aUen who shall have secured a certificate of citi- 
zenship under the provisions of this Act shall, within five years after the issuance of 
such certificate, return to the country of his nativity, or go to any other foreign coun- 
try and take permanent residence therein, it shall be considered prima Jack evidence 
of a lack of intention on the part of such alien to become a permanent citizen of the 
United States at the time of filing his application for citizenship, and, in the absence 
of countervailing evidence, it shall be sufficient in the proper proceeding to authorize 
the cancellation of his certificate of citizenship as fraudulent. . . ." 

•* "By the Acts of 1802 and 1824, only " free white persons " were capable of 
naturalization. By the Act of 1870, the benefits of the law were extended to " aliens 
of African descent." The law, as consolidated in the Revised Statutes, thus stands, 
embracing only *' white persons " and persons of African descent." 3 Moore, Digesty 

P- 329. 

'* See especially 3 Moore, { 383 ; and Van Dyne, 40 ff . Alien enemies are also 

excluded. 



250 ESSENTIALS OF INTERNATIONAL PUBUC LAW 

and father confers this status upon his wife ^ and minor children 
" dwelling in the United States." ^ 

235. Modes of Expatriation. — In spite of our championship 
of the doctrine of expatriation as a natural, inherent right, it was 
not until 1907 that the United States defined the conditions 
under which an American citizen should be deemed to have 
expatriated himself."* 

The Law of 1907 provides : 

(i) " That any American citizen shall be deemed to have 
expatriated himself when he has been naturalized in any foreign 
state in conformity with its laws, or when he has taken an oath 
of allegiance to any foreign State. 

(2) ^' When any naturalized citizen shall have resided for 
two years in the foreign State from which he came, or for five 
years in any other foreign State, it shall be presumed, that he 
has ceased to be an American citizen, and the place of his general 
abode shall be deemed his place of residence during said years.** 

'* Provided she be a person who may be lawfully naturalized under our present 
laws, i.e. if she be a white person or of African descent. 

Sec. 4 of the Act of 1907 provides that ''any foreign woman who acquires Ameri- 
can citizenship, by marriage to an American, shall be assumed to retain the same 
after the termination of the marital relation if she continue to reside in the United 
States, unless she makes formal renunciation thereof before a court having juris- 
diction to naturalize aliens, or if she resides abroad she may retain her dtizaaship 
by registering as such, before a United States consul within one year after the 
termination of such marital relation." Prior to the law of 1907, the status of an 
American woman married to an alien was doubtful. Van Dyne, 242 ff. 

" Any American woman who marries a foreigner shall take the nationality of her 
husband. At the termination of the marital relation she may resume her Americaa 
citizenship, if abroad, by registering as an American citizen within one year with a 
consul of the United States, or by returning to reside in the United States, or if 
residing in the United States at the termination of the marital relation, by con- 
tinuing to reside therein." Sec. 3, Act. of 1907. For the interesting case of Mrs, 
HeisingeTy see 3 Moore, § 413, pp. 467-469, and Van Dyne, 207-211. 

'^ This includes those minor children bom abroad who come to the United States 
after the father's naturalization, as well as those bom abroad who reside in the 
United States at the time of naturalization. 3 Moore, { 413, and Van Dyne, 
ch. 2, pp. 197 ff. 

'^ It had, however, frequently been held by the State Department (see tspcQgSty 
3 Moore, § 430) that children bom abroad of an American father might, at the age 
of majority, surrender the nationality of their parents and accept that of the coun- 
try of their birth and residence. This election need not be formal, but may be in- 
ferred from acts showing an intention to reside {animo manendi) permanenUy 
abroad. 

'' These provisions have been incorporated into many of the Naturalization Con* 
ventions to which the United States has been a party. 



INDIVIDUALS AS OBJECTS 251 

Provided^ however^ That such presumption may be overcome on 
the presentation of satisfactory evidence to a diplomatic or 
consular officer of the United States, imder such rules and reg- 
ulations as the Department of the State may prescribe: And 
provided alsOy That no American citizen shall be allowed to 
expatriate himself when his coimtry is at war." ^ 

236. Effect of Declaration of Intention. — Though mere 
declaration of intention in no wise confers citizenship or ab- 

^ Sec. 2 of the Act of 1907 in ** Reference to the Expatriation of Citizens and their 
Protection Abroad/' See Supplement to i -4. /. (1907), 258-250; or Van Dyne, 
NaturcUizaiion^ 438-440. For the Instructions to Diplomatic Officers and Consular 
Regulations referred to above, see Van Dyne, 475 ff. 

" It will be observed that the Act declares that expatriation may be efifecied in 
four different ways, viz. by naturalization in a foreign State, by taking the oath of 
allegiance to a foreign State, by marriage of an American woman to a foreigner, and 
by residence of a naturalized dtiten of the United States in a foreign country." 
Van Dyne, 337. 

" While residence of a naturalized citizen of the United States in a foreign coun- 
try b not sufficient evidence of expatriation, long-continued residence abroad raises 
a presumption of abandonment of citizenship. The presumption of law, with re- 
spect to residence in a foreign country, especially if it be protracted, is that the 
party is there ' animo manendi ^ and it lies upon him to explain it." Van Dyne, 345. 

A person " may reside abroad for purposes of health, of education, of amusement, 
of business, for an indefinite period ; he may acquire a conmiercial or a civil domicile 
there; but, if he does so sincerely and bona fide animo reverUndi, and does nothing 
inconsistent with his preexisting allegiance, he will not thereby have taken any 
step toward self-expatriation." Secretary Fish to the President (in 1873). Cited 
by Van Dyne, 345- 

"Voluntary expatriation by a naturalized citizen which forieits a right to dip- 
lomatic intervention may be inferred from a long residence abroad in the place of 
his birth, by the non-payment of taxes and non-possession of property in this coun- 
try, and by failure to express an intention to return." 2 Wharton. Digest , § 176, 
pp. 368-369. 

Another way (than the four modes above-mentioned) in which expatriation 
may be effected is by desertion from the army or navy. Contrary to the practice 
in some countries, foreign military or naval service or the acceptance of a public 
office in a foreign country do not in themselves effect expatriation in the view of 
the United States. 

"The doctrine of implied renunciation of citizenship by continuous residence in a 
foreign country does not completely apply to countries where citizens of the United 
States enjoy exterritoriality. In such countries they live under the protection, 
more or less, of their own Government, and are answerable to its laws. Conse- 
quently, they are generally held to retain their American domicile." 3 Moore, 
DigKty p. 776. The presumption in favor of retention of nationality by mission- 
aries in foreign lands is particularly strong. 

On Modes of Expatriatum or Loss of American Nationality , see especially 3 Moore, 
i§ 466-480; Van Dyne, Citizenship, Pt. IV, ch. i; Ihid., Naturalization, ch. 5; 
and 2 Wharton, Digest, §§ 176-179. 



25 2 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

solves the party making it from allegiance to the Government 
of the coimtry from which he comes,*^ yet our Secretary of State 
is authorized by Act of Congress to issue passports, at his dis- 
certion, to persons who are not fully naturalized in certain 



cases.** 



in. Aliens, particularly Doiciciled Aliens 

237. Domiciled Aliens. — There is a third class of persons 
who, under certain drciunstances, may be said to be clothed 
with the national character of the country in which they reside, 
but they are in no wise to be regarded as subjects or citizens. 
They are domiciled aliens.** 

238. What is Domicile? — " By a person's domicile is meant, 
generally speaking, his permanent home [or residence]. It is 
the criterion, in English and American law, of civil as distinguished 

^ See especially Minneapolis v. Reum (1893), 5^ Fed. Rep. 576, and Soott, 390; 
3 Moore, § 387 ; Van Dyne, Citizenship f Nos. 24, 26-38, 43 ; and Ibid,, Naiuraliza" 
tlon, 64-76, 224, 262-263. 

^ *' Where any person has made a declaration of intention to become such a 
citizen as provided by law, and has resided in the United States for three years, 
a passport may be issued to him entitling him to the protection of the Government 
in any foreign country : Provided, that such passport shall not be valid for more 
than six months and shall not be renewed, and that such passport shall not entitle 
the holder to the protection of thb Government in the country of which he was a 
citizen prior to making such declaration of intention." Sec. z of Act of March 2, 
1907, cited above. 

In the famous Koszta case (see infra, p. 254 n.), Secretary Marcy did not, as 
frequently misrepresented, base his argument upon the fact that Koszta had declared 
his intention to be an American citizen, but he merely used this fact as 
evidence of domicile. The State Department has, in a few instances, held that 
such declaration gives a "quasi right to protection as against the claim of a third 
Power to allegiance." Secretary Frelinghuysen to Mr. Wallace, Minister to 
Turkey, 1884. See 3 Moore, p. 340. It b more than doubtful whether this can 
be maintained as a principle of International Law. * 

In the case of Boyd v. Nebraska (143 U. S. Rep. 178), the United States Supreme 
Court declared that minors acquire an inchoate status by declaration of intention 
on the part of their parents which entitles such minors, in case the naturalization of 
their parents remains incomplete, to retain American nationality at the age of 
majority or accept the allegiance of some foreign Power. See Van Dyne, Citizen- 
ship, Nos. 28 and 43. 

In many States of the American Union, an alien who has declared his intention 
may vote at elections for Federal as well as State officers, but this does not make 
him a citizen of the United States. 

^ The laws of England still recognize a sort of inferior naturalization called 
denization. Denization is by letters patent issued under the Great Seal and deni- 



INDIVroUALS AS OBJECTS 253 

from political status. The case is the same in the law of other 
coimtries, though not of all. In Italy, for example, civil status 
follows the political ; and so it does to a great extent in France, 
and in the countries which, like Belgium, have followed the 
French Civil Code. It is not, however, conversely true that 
in countries where civil status is derived from domicile that 
political status follows the dvil. In such countries, the two 
conceptions are distinct, neither being dependent upon the 
other." ** 

239. Questions to which the Law of Domicile Applies. — 
Thus, the question of domicile is quite distinct from that of 
allegiance or nationality proper. In most countries, the law of 
a man's domicile (lex domicilii) regulates such matters as legiti- 
macy, minority, capacity to contract, marry ,^ or hold property, 
the validity of a will relating to personality, and the succession 
to personal property in cases of intestacy. 

240. The Principle of Nationality. — Some countries, however, 
like France ^ and Italy, where the rules of the Civil Code are in 

zens appear to occupy an intermediate position between aliens and subjects. Under 
the old law, they could not inherit real property or transmit it to their children bom 
before denization, but this distinction seems to have disappeared. Their main dis- 
qualification appears to be they are prohibited by the Act of Settlement (1700) 
from membership in the Privy Council or of eitlier House of Parliament, from 
holding any office under the Crown, or from enjojing any grants of land from 
the Crown. The main advantage of this form of naturalization appears to be that 
it afifords a means of avoiding the requirement of five years' residence in the 
United Kingdom required for ordinary naturalization. On Denization^ see Hall, 
Foreign Jurisdiction, etc., § 22, and i Piggott, Nationality , ch. 6. 

^ 3 Moore, Digest, § 487, p. 811. Professor Moore adds : "In primitive times it 
was not so. In days when the people were, generally attached to the soil, . . . domi- 
cile was the general criterion of status, political as well as civil, if, indeed, it can be 
said that such a distinction then existed. But, with the passing away of the feudal 
system and the rise of the modem national State, together with the coincident 
development of commerce and industry, political allegiance — allegiance to the 
nation — became, as a distinct conception, the test of national character, while domi- 
cile, whether national or quasi-national, or merely municipal, remained the test of 
rights in civil relations." 

** This refers merely to capacity to contract a marriage, as the age of consent, 
etc. The effects of marriage itself appear, generally speaking, to be governed by 
the law of the place (lex loci rei sitte) where the marriage has been celebrated. 

** France apph'es the principle of nationality to marriages by Frenchmen abroad. 
Thus, a marriage contracted by a Frencman in which the forms required by French 
law have not been observed, will not be regarded as valid by French tribunals. 
The marriage of Jerome Bonaparte in 1803 to Miss Patterson of Baltimore was 
invalidated on this ground. Dana, note 55 to Wheaton, § 93, p. 151. 



254 ESSENTIALS OF INTERNATIONAL PUBUC LAW 

force, apply the principle of nationality to many or all of these 
questions. Such matters really fall within the field of Interna- 
tional Private Law or Conflict of Laws whose particular function 
it is to furnish the jurist with precedents, rules, and principles 
for the decision of cases arising under these heads. He has to 
determine, in any given case, whether to apply the law of domicile, 
the law of allegiance, or the simple rule of the lex loci ret siUe.^ 

Although the law of domicile as a part of International Law is 
mainly confined to matters of prize or to cases arising from 
belligerent capture,^ it may be of interest to indicate some of the 
more general rules of the lex domicilii in this connection because 
of their importance in international relations. 

241. Kinds of Domicile. — According to most authorities, 
domicile is of two kinds — Domicile of Origin and Domicile of 

*^ The lex loci is eq)eciaUy iH[)pI]ed to cases involving the conveyanoe of real 
property. 

^ See infra, § 442. In the famous Koszta case (1853), Secretary Marcy made the 
astonishing daim that ''it is a maxim of International Law that domicile confers 
a national character/' and that persons domiciled in the United States had a right 
to the protection of our Government while abroad. 

Martin Koszta, a Hungarian refugee involved in the revolution of 1848, came to 
the United States, where he declared his intention of American citizenship on July 
31, 1852. After a residence of nearly two years in the United States, he went to 
Turkey and placed himself under the protection of the American consul at Smyrna. 
Here he was seized and confined on board an Austrian brig of war, but was rescued 
by the prompt intervention of Captain Ingrahm, in command of the United States 
sloop of war St. Louis, who threatened to use force in case Koszta was not released. 
Fortunately, an arrangement was made by which the prisoner was delivered into 
the custody of the French Consul-General until the United States and Austria should 
agree as to the manner of di^x>sing of him. Subsequently, he was sent back to the 
United States. 

In the controversy which followed, Secretary Marcy supported the action of the 
United States mainly on two grounds : (i ) That Koszta, having acx^uired a domicile 
in this country, was entitled to national protection. This argument was dearly 
untenable, as mere domicile only confers national (enemy) character under certain 
circumstances in time of war (see infra, §442). (2) "By the laws of Turkey and 
other eastern nations, the consulates therein may receive under their protection 
strangers and sojourners whose religion and social manners do not assimilate with 
the religion and manners of those countries. The persons thus received become 
thereby invested with the nationality of the protecting consulate. These consulates 
and other European establishments in the East are in the constant habit of open- 
ing their doors for the reception of such inmates, who are recdved irrespective of the 
country of their birth or allegiance. It is not uncommon for them to have a large 
number of such protigis. International Law recognizes and sanctions the rights 
acquired by this connection." This position was deariy tenable, and furnishes 
ample justification for the action of our Government. 



INDIVIDUALS AS OBJECTS 255 

Chocie.^ Domicile of Origin is that derived from the place of 
birth. Legitimate children acquire the domicile of the father 
and illegitimate children that of the mother at the time of birth. 
Foundlings have the domicile of the country in which they are 
bom. Domicile of Choice is that deliberately adopted by a per- 
son of full age. It consists of a combination of actual residence 
{factum) and intention of permanent or indefinite residence 
{animus manendi). The domicile of origin is retained until a 
domicile of choice is actually acquired ; a domicile of choice until 
it is abandoned, when the domicile of origin reverts or a new domi- 
cile of choice is acquired. 

242. Special Rules of Domicile. — The wife usually takes the 
domicile of her husband and retains it aftei his death. But if 
she should marry again, she acquires the domicile of her second 
husband. A legitimate minor has the domicile of his father or of 
his mother during widowhood, or, perhaps, in some cases, of his 
legally appointed guardian. In no case can the minor change his 
domicile of his own accord. 

243. Time and Intention the Controlling Principles Deter- 
mining Domicile. — The two controlling principles in deter- 
mining domicile are intention and time. But mere intention, 
without some overt act, is not suflScient.*® The most material 
drcimistance showing intention is actual residence, but it may 
also be deduced from the nature of the occupation, correspond- 
ence, or business relations of the one claiming a domicile. Thus, 

On the Kostla case, see 3 Moore, Digest, §§ 490-491. The accounts of this case 
usually found in the treatises and textbooks are either inadequate or practically 
worthless, owing to the fact that they are, for the most part, based upon miscon- 
ceptions or misrepresentations. For abridged 'citations from the documents, see 
2 Wharton, Digest ^ §§ 175, 198. 

In a subsequent case (that of Simon Tousig), an Austrian who had acquired a 
domicile in the United States and was later arrested and imprisoned in Austria, 
Secretary Marcy properly refused to intervene on the ground that Tousig had 
"voluntarily returned to Austria and placed himself within the reach of her munic- 
ipal laws." 3 Moore, p. 838. 

^ Some authorities spezk of a third kind — Domicile by Operation of Law, as 
where a minor or dependent person passes under the control of a legal superior or a 
person acquires a domicile by virtue of employment by the State. But it would 
seem that persons falling under this category may be readily classified imder one or 
the other of the heads indicated in the text. 

•* Sir Wm. Scott, in The President, 5 Rob. 279. But a few days' residence was 
held sufficient in the case of Mr. Whitehall, who was shown to have intended to take 



256 ESSENTIALS OF INTERNATIONAL PUBUC LAW 

the pursuit of a regular trade or business would clearly indicate 
domicile or permanent residence. The presumptions, in these 
cases, would be strongly in favor of intention {animo manendi) \ 
but this presumption may be overcome by proof that the original 
intention was only to remain for a short and definite time, and 
that the original domicile has not been lost or a new domicile 
acquired. 

Domicile of origin easily reverts in cases of acquired domicile. 
To effect this it is sufficient that the person with a domicile of 
choice should actually begin his return journey to his native 
country with the intention of resuming his residence there.^^ 

244. The Right of Ezcluding Aliens. — '' Every State is free 
to admit foreigners upon its territory or to exclude them, in case 
of necessity, from motives of public order ; with stronger reason 
it is free to admit them on certain conditions, imder certain re- 
strictions. At the same time the usage generally followed by 
governments permits to foreigners, in times of peace, entrance 
upon their territory, freedom to trade, passage, temporary so- 
journ, and settlement; but it is well understood that every 
individual presenting himself upon foreign territory, by this 
fact alone tacitly agrees to submit to the laws of the country 
that receives him, to pay the imposts due from any commercial 

up his permanent residence in the island of St. Eustatlus shortly before the British 
took it from the Dutch in 1781. Lawrence (3d ed.), p. 320; and Wheaton, { 321. 

The importance of time or long-continued residence was carefully considered by 
Sir Wm. Scott in the case of The Harmony (1800), 2 C. Rob. 322 and Scott, 585. 
Lord Stowell held that '*a special purpose may lead a man to a country which shall 
detain him the whole of his life . . . against such a long residence, the plea of an 
original purpose could not be avowed. It cannot happen, with but few exceptions, 
that mere length of time shall not constitute a domicile." 

The presumption against an acquired domicile would be strong in the case of a 
mere student, a prisoner, or a missionary. 

" Thus, in the case of The Indian Chief (1801), 3 C. Rob. 12, and Scott, 588, 
Lord Stowell ordered the restoration of the property of Mr. Johnson, an American 
domiciled in England, on proof that, at the time of capture, he had actually left 
England for the United States with the intention of remaining there. Lord Stowell 
said : ''The character that is gained by residence ceases by non-residence. It is an 
adventitious character, and no longer adheres to him from the moment that he puts 
himself in motion bona fide to quit the country sine animo revertendi." 

The leading American case is that of The Venus (18x4), 8 Cranch,*253, and Scott, 
591. It adopts the principles of the British decisions, cited above, and in connec- 
tion with these, should be carefully considered by the student. For a good com- 
mentary, see Hall (5th ed.), 497-500; Lawrence (3d ed.), § 177; and Wheaton, 

§§ 322-33€, 



INDIVroUALS AS OBJECTS 257 

operations in which he may engage or any business which he may 
establish, and to observe the local police regulations." ^ 

245. The Practice of the United States. — The United States 
has exercised the power of total exclusion in the case of the 
Chinese ^ (and this in violation of treaty), and Congressional leg- 
islation to this effect has been upheld by our Supreme Court. 

''It is an accepted maxim of International Law, that every 
sovereign nation has the power, as inherent in sovereignty, and 
essential to self-preservation, to forbid the entrance of foreigners 
within its dominions, or to admit them only in such cases and 
upon such conditions as it may see fit to prescribe. In the 
United States, this power is vested in the national Government, 
to which the Congress has conmiitted the entire control of inter- 
national relations, in peace as well as in war. It belongs to the 

"^ 2 Calvo, § 700. Those authorities like Bonfils, Fiore, He£fter, etc., who claim 
that the Law of Nations guarantees certain natural rights to the individual, speak 
of a right of emigration as "flowing logically from the principle of individual liberty." 
But these same publicists admit that some States discourage emigration and that 
''the freedom of emigration does not imply the absolute right of immigration" 
Bonfils, Nos. 412-414. 

It is true that nearly all modem States, with the exception of Russia, freely per- 
mit emigration, but this is not legally obligatory upon the State. 

Some publicists (e.g. Liszt, 3d ed., § 25) maintain that, as a result of the fun- 
damental right of commerce or intercourse between States, a member of the family 
of nations is under obligation to open its territory to the nationals of all civilized 
States. 

True it is that a modem State which excluded all foreigners would practically 
place itself outside the pale of the intemational community, and that the exclusion 
of those of a particular nationality would probably justify measures of retorsion 
(a form of reprisal — see infra ^ § 321) ; but there can be no legal obligation in the 
premises. "The reception of foreigners is a matter of discretion, and every State 
is by reason of its territorial supremacy competent to exclude foreigners from the 
whole or any part of its territory." i Oppenheim, § 314, 

Rivier (I, p. 307) states the correct doctrine when he says : "The State is master 
in its own house. It may refuse to foreigners access to its territory, interdict all 
immigration, or the immigration of certain individuals or of certain categories of 
individuals, for example, nationals of certain countries." Rivier adds, however, 
that this principle, which flows logically from the rights of independence and self- 
preservation, is tonday greatly tempered by the rights of mutual commerce and inof- 
fensive passage. 

For resolutions on the admission of foreigners adopted in 1892 by the Institute 
of Intemational Law, see 12 Annuaire^ 220-221. See especially Art. 6. For 10 
Articles and 14 wishes on the subject of emigration, see 16 Annuaire (1897), 262- 
364 and 276-279. 

" For the legislation and treaties relating to the Chinese, see 4 Moore, Digest, 
{§ 567-578. For 52 rules regulating the admission of the Chinese in 1909, see 

s 



258 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

political power of the Government, and may be exercised either 
though treaties made by the President and Senate, or through 
statutes enacted by Congress." ^ 

246. The Immigration Laws of the United States. — Since 
187s the Congress of the United States has shown ever increasing 
severity in its general restrictions upon foreign immigration. 
The Act of March 2, 1907," levies, for purposes of an "immigrant 
fund," a head tax of four dollars for every alien entering the 
country and provides that " the following classes of aliens shall 
be excluded from admission into the United States : 

" All idiots, imbeciles, feeble-minded persons, epileptics, 
insane persons, and persons who have been insane within five 
years previous; persons who have had two or more attacks of 

Treaty J Laws, and Regulations Governing the Admission of the Chinese , published by 
the Bureau of Immigration and Naturalization of the Dept. of Commerce and 
Labor (1909), 34 ff. For a selected bibliography on the Chinese Question, see Mrs. 
Coolidge, Chinese Immigration (1909), 505 flf. For more complete bibliographies, 
see Cowan and Dunlap, Bibliography of the Chinese Question in the United 
States (1909) ; Griffen, Select List of References on Chinese Immigration (1904) ; 
and Ibid., A List of Books on Immigration (1907). 

As a result of agitation for an anti- Japanese exclusion law, a modus vivendi 
between the Japanese and the United States Governments was effected in 1907 
whereby the Japanese were practically excluded by executive action in the two 
countries. 

** Justice Gray, in Nishimura Ekiu v. United States (1891), 142 U. S. 651, 659. 
Cf. Justice Field in Chae Chan Ping v. U.S., 130 U. S. 581,609 ; and Justice Gray 
in the Chinese Cases (1892), 149 U. S. 698, and Scott, 382. 

'^ For previous legislation, see 4 Moore, Digest, § 562. 

The Act of 1875 merely prohibited the importation of women for purposes of 
prostitution and the immigration of aliens *'who are undergoing conviction in 
their own country for felonious crimes, other than political. ..." The Act of 
1882 levied a head tax of fifty cents "for every passenger not a citizen of the United 
States," and forbade the landing of convicts, lunatics, idiots, or of *'any person 
unable to take care of himself or herself without becoming a public charge." The 
Act of 1885 forbade the immigration of aliens under contract to labor. The Acts 
of 1 89 1 and 1903 made a number of further additions to the excluded classes 
(such as anarchists, polygamists, and epileptics), the latter Act raising the head 
tax to two dollars; but it was not before 1907 that this tax was raised to four 
dollars, and imbeciles, the feeble-minded, persons afflicted with tuberculosis, those 
physically defective, etc., were excluded. A highly desirable illiteracy test was 
favored by the Senate, but unfortunately stricken out by House of Representa- 
tives. 

In 1905 the British Parliament passed an Aliens Act largely modeled on the 
Act of Congress of 1882. It merely excludes undesirable aliens who belong to 
one or more of the following classes : 

*' (a) If he cannot show that he has in his possession or is in a position to obtain 
the means of decently supporting himself and his dependants (if any). 



INDIVIDUALS AS OBJECTS 259 

insanity at any time previously; paupers; persons likely to 
become a public charge; professional beggars; persons afflicted 
with tuberculosis or with a loathsome or dangerous or contagious 
<iisease ; persons not comprehended within any of the foregoing 
excluded classes who are found to be and are certified by the 
examining surgeon as being mentally or physically defective, such 
mental or physical defect being of a nature which may affect 
the ability of such alien to earn a living ; persons who have been 
convicted of or admit having committed a felony or other crime 
or misdemeanor involving moral turpitude ; polygamists, or per- 
sons who admit their belief in the practice of polygamy ; anar- 
chists, or persons who believe in or advocate the overthrow by 
force or violence of the Government of the United States, or of all 
government, or of all forms of law, or the assassination of public 
officials ; prostitutes, or women or girls coming into the United 
States for the purpose of prostitution, or for any other immoral 
purpose, or persons who procure or attempt to bring in prosti- 
tutes or women or girls for the purpose of prostitution or for any 
other immoral purpose; persons hereinafter called contract 
laborers," who have been induced or solicited to migrate to this 
country by offers or promises of employment or in consequence of 
agreements, oral, written or printed, express or implied, to per- 
form labor in this country of any kind, skilled or unskilled ; those 
who have been, within one year from the date of application for 
admission to the United States, deported as having been induced 

'' (b) If be is a lunatic or an idiot, or owing to any disease or infirmity appears 
likely to become a charge upon the rates or otherwise a detriment to the public. 

" (c) If he has been sentenced in a foreign country with which there is an ex- 
tradition treaty for a crime, not being an offense of a political character, which is, 
as respects that country, an extradition crime within the meaning of the extradi- 
tion Act, 1870. 

" (d) If an expulsion order under this Act has been made in his case." 

But, unlike the legislation of the United States, the Act provides for exemp- 
tion in case of an immigrant who proves that he is seeking admission solely to avoid 
religious persecution. The Act also provides specific directions for the expulsion 
of undesirable aliens. 

For an analysis of the Aliens Act of 1905, see Sibley and Elias, The Aliens 
Act and Right of Asylum (1906), 43 ff. For the text, see Ihid.^ App. I, 83 ff. 

Inunigration laws exist in a number of countries, but the power of expulsion 
is much more general than that of prohibitions against admission. Sibley and 
Elias, 19. 

**For judicial interpretations of the term "contract laborers," see 4 Moore^ 
1564. 



26o ESSENTIALS OF INTERNATIONAL PUBUC LAW 

or solicited to migrate as above described; any person whose 
ticket or 'passage is paid for with the money of another, or who is 
assisted by others to come, imless it is af&rmatively shown that 
such person does not belong to one of the foregoing excluded classes 
and that said ticket or passage was not paid for by any corpora- 
tion, association, society, municipality, or foreign government, 
either directly or indirectly ; all children imder sixteen years of 
age, unaccompanied by one or both of their parents, at the dis- 
cretion of the Secretary of Commerce and Labor, or imder such 
regulations as he may from time to time prescribe: Provided, 
That nothing in this Act shall exclude, if otherwise admissible, 
persons convicted of an offense purely political, not involving 
moral turpitude : Provided further, That the provisions of this 
section relating to the payments for tickets or passage by any 
corporation, association, society, municipality, or foreign govern- 
ment shall not apply to the tickets or passage of aliens in immedi- 
ate and continuous transit through the United States to foreign 
contiguous territory ; And provided further, That skilled labor may 
be imported if labor of like kind unemployed cannot be found in 
this country ; And provided further, That the provisions of this law 
applicable to contract labor shall not be held to exclude pro- 
fessional actors, artists, lecturers, singers, ministers of any 
religious denomination, professors for colleges or seminaries, 
persons belonging to any recognized learned profession, or per- 
sons employed strictly as personal or domestic servants."" 

It may thus be seen that the main purpose of the Immigration 
Law of the United States is to exclude those aliens who are 
regarded as mentally, morally, or physically imdesirable, and 
that the object of the law is self-protection. 

247. Expulsion of Aliens. — The right of expelling foreigners is 
also generally held to be an attribute or incident of sovereignty,* 
and is probably practiced, to a greater or less extent, by all 
political commimities. It is usually justified on grounds of self- 
protection or public interest. Expulsion is necessarily an admin- 

" Sec. 2 of the Act of Feb. 20, 1907, as printed in Supplement to 1 A. J. (1907) 
239-241. For comments, see editorial in i A. 7., 452-462. 

** A few publicists like Fiore {Droit Penal Int., 100 ff.) and Pinheiro-Ferrcini 
(Notes sur VaUdy liv. II, c. 8, § 100) are of the opinion that the practice of expul- 
sion is an invasion of natural rights; but the majority of the authorities justify 



INDIVIDUALS AS OBJECTS 261 

istrative act, but it is not a punitive measure and should not be 
performed in an arbitrary or needlessly injurious manner or for 
insufficient cause. The expelled person has a right to know the 
reason for his expulsion, and this reason should be communicated 
to the Government of the State to which he belongs. Unless 
there is imperative reason for urgency, he should be given a 
reasonable time to adjust his affairs, more especially in the case 
of a domiciled alien with business or property interests." There 
should be no discrimination because of race or religion.^ 

If these rules are violated, an indemnity ^^ may be demanded 
by the Government of the injured alien. If this be refused, the 
case should be arbitrated. As a last resort, recourse may be had 
to reprisal in the form of retorsion. 

248. Rights of Aliens. — Nearly all modem nations place the 
foreigner upon substantially the same footing as the native in 
respect to the enjoyment of dvil as distinguished from political 
rights. In a few States they are still under certain disabilities 
as far as trade, the practice of certain occupations and professions, 
religious worship, and the ownership, transfer, and inheritance 
of real property are concerned.** 

it on grounds of public interest. See, e,g. ^Bluntschli, Art. 383; Bonfils, 
No. 442 (see especially p. 255 of 5th ed. for references) ; B^ de Berc, De Vexpul" 
sion des Urangers (1888) ; * 6 Calvo, §§ 1 19-1 25 ; Darut, De ^expulsion, etc. (1902) ; 
Despagneti Nos. 347-348 ; Duplessix, Nos. 138-143 ; * Martini, ^expulsion des 
iirangers (1909), ch. i ; *4 Moore, Digest , §§ SSo-SSQ; *i Oppenheim, §§ 323- 
326; 3 P.-Fod6r6, Nos. 1857 ff. ; *i Rivier, 311-314; Rolin-Jaequemyns, in 20 
R. D, I. (1888), 498; 2 Wharton, Digest, § 206. 

In Turner v. Williams (1904), 194 U. S. Rep. 279, the Supreme Court of the 
United States declared the right to expel aliens inherent in sovereignty. For the 
resolutions on expulsion of foreigners adopted by the Institute of International 
Law, see 12 Annuaire (1892), 221-226, Arts. 14-41. 

•• For cases of expulsion, see 3 and 4 Moore, Digest, §§ 393, 399, 463, 550-559. 
See especially the case of Hollander, in 4 Moore, pp. 102-108. 

^ Such discrimination is practiced by Russia in the case of Jews. See 4 Moore, 

§554- 

*' The British exacted an indemnity from Nicaraugua for the arbitrary seizure 
and expulsion of twelve British subjects in 1894. See the Bluefidds case, in 4 
Moore, Digest, % 551, pp. 99-102. 

For claims on accoimt of expulsion, decided by mixed commissions, see 4 Moore, 
ItU, Arbitrations, 3333-3359- 

^ Trade restrictions are still very great in China. It is generally known that 
foreigners are only legally permitted to trade in certain ports or places opened by 
treaty. 

In Japan property in the soil (if not in immovables in general) is still forbidden 



262 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

All that aliens can claim, however, from the strictly legal 
standpoint, is protection of life and property, and access to the 
courts for the sake of securing this protection.® But most 
modem States permit to alien friends the free use of their courts 
on the same terms as natives or citizens. The United States 
even recognizes the right of non-resident aliens to sue in the 
Federal courts.^ 

249. Duties of Aliens. — In return for this protection, mere 
passing travelers or visitors, as well as resident aliens, owe a local 
and temporary allegiance and obedience to the laws or the sover- 
eign in whose country they live or through whose territory they 
pass. They are subject to the local administration and may be 
punished for any crimes or misdemeanors committed within the 
jurisdiction of such sovereign.** They must obey all reasonable 
regulations instituted for their welfare or for the convenience of 

to foreigners as individuals. It also appears that the personality of foreign cor- 
porations is not recognized in Japan. At least this was the case in 1903. See 
Clavery, Les grangers au Japan (1904), vi and 5. The Jews are still under cer- 
tain religious and economic disabilities in Russia and Roumania. 

In several States of the American Union, aliens are still prohibited from pur- 
chasing, holding, or inheriting real estate; but these disqualifications have, in 
the case of those belonging to certain nationalities, been overridden by treaties 
which our courts hold to be the law of the land, State laws or constitutions to the 
contrary notwithstanding. See 4 Moore, Digest, §§ 544-545. 

The British Act of Naturalization of 1870 removed the disabilities until then 
resting upon aliens in the United Kingdom in respect to the acquisition and dis- 
position of real property. The registry laws of the United States, as in some 
other countries, place certain restrictions upon aliens in respect to the registration 
of vessels. 2 Moore, Digest, § 322. 

The special rights of exterritoriality still enjoyed by foreigners in some Eastern 
countries will be briefly considered under the head of Consular Jurisdiction. See 
infra, 291. 

® For a fuller discussion of this subject, see supra, ch. 10. 

^ France refuses the use of her tribunals where the plaintiff and defendant are 
both foreigners. This system is justly condemned by Bonfils, No. 447. 

^^ Aliens traveling or residing in foreign lands are none the less subject to the 
laws of their own country. They are thus subject to a double or concurrent juris- 
diction. But it is not customary for the home State to assert jurisdiction over 
crimes committed by its citizens abroad except for particular offences (such as 
treason, counterfeiting, etc.) or in particular places (in barbarous coimtries or 
communities). 

Aliens traveling or residing abroad are subject to recall (jus avocandi) for mili- 
tary service. Their government owes them a certain measure of protection against 
arbitrary or oppressive acts on the part of foreign governments, but this protec- 
tion is exercised at the discretion of the home government. See supray ch. zo and 
Bibliography on pp. 169-170. 



\ 



INDIVIDUALS AS OBJECTS 263 

the local authorities, such as requirements in respect to the visi 
of passports,* registration, etc. 

The power to impose taxes being an attribute of sovereignty, 
aliens must pay all just and ordinary taxes, but they are not 
boimd to submit to the exaction of forced loans ^ or to taxes 
which are discriminatory and confiscatory. Resident aliens, 
who have not declared their intention to become naturalized 
citizens or who have not exercised the right of suffrage are not 
liable to military service, though it is generally held that they may 
be called upon to perform police or militia service in case of neces- 
sity." 

IV. Extradition of Fugitive Criminals and Political 

Offenders 

A fourth category of individuals who may, from a certain point 
of view, be regarded as objects of the Law of Nations, are Fugi- 
tive Criminals and Political Offenders. 

250. Fugitive Criminals. — Fugitive criminals or persons 
accused of crime committed in one country and fleeing into an- 
other may be extradited or delivered by the government of the 
latter into the hands of the authorities of the former, upon the 
demand of the government of the nation in whose territory the 
crime has been committed. In the absence of a treaty, extradi- 
tion is not, strictly speaking, a legal obligation ; ^ for there is no 

Some countries even wrongfully assert jurisdiction over foreigners for acts 
committed on foreign territory. See supra, i 149 and p. 160 for references on the 
Cutting Case. 

•• On American Passports, see especially 3 Moore, Digest, {} 493-533, and Gail- 
lard Hunt, The American Passport. Though often found to be a convenience, 
they are no longer a necessity in western Europe, i.e. outside of Russia. It should 
be noted that, according to the Expatriation Law of 1907, limited passports may 
now be issued to those who have merely declared their intention. 

'^ 2, 4, and 6 Moore, Digest, §{ 183-184, 540, and 1036. For the consideration 
of the subject of forced loans by international commissions, see 4 Moore, Int. 
Arbitrations, ch. 62, 3409-341 1. 

** On the Exemption of Aliens from Ordinary Military Service, see especially 
Bluntscfali Art. 391; Bon61s, No. 445; Despagnet, No. 354; *Hall (5th ed.), 
207-209; * I Halleck (Baker's 3d ed.), 419-420 n., 558-559 n.; Lawrence, Pf»«- 
ciples (3d ed.),i 117: *4 Moon, Digest, { 548; i Westlake, 211-212; 2 Wharton, 
Digest, i 202. 

** Clarke (Extradition, ch. i, 4th ed., 1903) vainly attempts to show that the 
assertion that "the majority of jurists deny the existence of any right to demand 



264 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

generally recognized rule of International Law which requires 
that the worst criminal be given up by one sovereign upon the 
request of another. 

But it is to the interest of civilization and the international 
community that aU persons guilty of serious crimes be extradited 
for trial to the place where the crime has been committed. 
Since the third decade of the nineteenth century'® a number 
of laws have been enacted and numerous treaties of extra- 
dition concluded which prescribe the mode and conditions of 
delivery and enumerate crimes for which extradition shall take 
place. 

extradition'* is incorrect. He quotes from Grotius, Pufendorf, Kent Stoiy, etc.; 
but he is not fully borne out even by these authorities, for the majority of them 
evidently consider extradition a natural right or moral duty rather than a legal 
right or obligation. He himself finally concludes (p. 14) that the refusal to sur- 
render fugitive criminals is "a serious violation of the moral obligations which 
exist between civilized communities." 

The great majority of the more modem authorities clearly regard extradition, 
in the absence of a treaty, as a mere matter of comity, discretion, interest, or 
moral obligation. This is also the view of the great majority of jurists and states- 
men, and it is borne out by international practice. See espedaUy 4 Moore, Digest^ 
§§ 580 fiF. ; and Spear, The Law of Extradition (1885, 2d ed.), ch. i, for views of 
American jurists and statesmen. 

Some modem authorities are, however, not quite clear upon this point. Fiore 
(I, Nos. 626-627) considers extradition a duty of mutual aid or assistance. De- 
spagnet (No. 291) speaks of it as a " theoretical obligation founded upon the prin- 
ciples of International Law/' but denies that it is a *' positive obligation," in the 
absence of convention. Westlake (I, p. 244) classes it as an "imperfect right.'' 
Rivier (I, p. 348) appears to be practically alone in holding, apparently without 
reserve, that "independently of all conventional arrangement, there is an obliga- 
tion of extradition existing between States of equal civilization, members of the 
international community." But even he adds: "This principle is to-day more 
or less generally recognized, at least in theory." 

^^ Treaties of extradition were comparatively infrequent prior to the French 
Revolution. Contrary to the modem usage, they were usually directed against 
political offenders rather than ordinary criminals. Art. 20 of the Treaty of Amiens 
(1802) provided for the reciprocal extradition of fugitives accused of certain heinous 
crimes between England, France, Spain, and the Batavian Republic. But it was 
not until after 1840 that Treaties of Extradition may be said to have become 
frequent. This was doubtless owing to increased facilities of interstate com- 
munication. 

The first municipal law on the subject appears to have been the Belgian law of 
1833, but it was not until 1870 that the British Parliament passed an Extradition 
Act. The Congress of the United States passed General Extradition Laws in 
1848 and 1869 — Acts which are now replaced by sections 5270-5277 of the Re- 
vised Statutes, supplemented by the Act of 1882 (22 U. S. Stat, at Large, 215). 

With the exception of Art 37 of Jay's Treaty of 1794 with Great Britain (which 



INDIVIDUALS AS OBJECTS 265 

251. The Nature of Bztnulition. — As a rule, States refuse 
to extradite their own citizens or subjects.^ Just as a govern- 
ment, unless bound by treaty, may refuse extradition for any 
crime whatsoever, so it may grant extradition at its discretion, 
imless restrained by municipal law.^ For extradition is essen- 
tially a political or executive act, though the judiciary usually 

expired by limitation in 1807), the first treaties of 'the United States were with 
Great Britain in 1842 and France in 1843. 

For the Extradition Treaties and Laws of the United States, see Hawley, Ini, 
ExbradiHon (1893); Moore, ExUradition (1891); Spear, The Law cf ExbradiUon 
(1885), Appendices; Supplements to A. J: 

For the Laws and Treaties of Great Britain, see Biron and Chahners, Extra- 
diUan (1903) ; Clark, ExiradUian (1903), Appendix; and Piggott, ExiradUhn (1910), 
Appendix II, pp. 25 £F. 

^ England and the United States are exceptions to this rule. This arises from 
the fact that the United States does not, except for such international crimes as 
piracy and the slave trade, punish her citizens for crimes committed out of the covin- 
try, and that England only punishes her subjects for such crimes as treason, mur- 
der, bigamy, etc., when these are committed abroad. 

In the absence of a clause expressly exempting nationals from extradition, the 
State Department at Washington holds that they should be surrendered upon 
demand. Italy, however, has refused to deliver up her subjects to the United 
States in spite of the fact that the Extradition Treaty between the two countries 
contains no such exemption. See 4 Moore, Digest^ § 594, pp. 290 £F. In 1890 the 
Swiss Federal Tribunal decided in favor of the position taken by the United States. 
/Hi., pp. 298 ff. 

In Trimbles Case (1884) the United States declined to order the surrender of 
one of its citizens to the Mexican Government '*on the ground that, as the treaty 
negatived any obligation to do so, the President was not invested with legal au- 
thority to act." I Moore, Extradition, 166. 

Art. 6 of the Treaty of 1861 with Mexico declared that "neither of the con- 
tracting parties shall be bound to deliver up its own citizens under the stipula- 
tions of this treaty." Secretary Frelinghuysen construed this provision (which, 
as he said, was identical with clauses in fourteen other Extradition Treaties of 
the United States) as conferring upon the President no discretionary power what- 
ever — a view which was judicially upheld in Ex parte McCabe^ 46 Fed. Rep. 
363. Art. 4 of the Treaty of 1899 between the United States and Mexico 
expressly granted such discretionary power to the President. 4 Moore, Digest, 

p. 303. 

"In July, 1895, the Mexican Government declined to surrender to the United 

States Chester W. Rowe, a fugitive from justice, on the ground that he had, by 
the purchase of real estate in Mexico, assumed Mexican nationality." Ibidt p. 302. 
" This at least appears to be the prevailing doctrine in France and on the Con- 
tinent. But it is not the view in England or the United States. In the United 
States, it has been almost uniformly held that, in the absence of a treaty, the 
President is not authorized to order an extradition. An exception was the un- 
authorized surrender by Secretary Seward of ArgueUes to Spain in 1864. But this 
violation of constitutional law and custom has been generally condemned. On 
the Arguelles case, see Clarke, 72-74; Lawrence (3d ed.), § 132; *i Moore, 



266 ESSENTIALS OF INTERNATIONAL PUBUC LAW 

decides the legal or technical points involved, at least in England 
and the United States. Extradition is generally granted on the 
bases of reciprocity, and is applied to a considerable number and 
variety of crimes.^ 

252. Rules of Extradition. — There are several conventional 
rules governing extradition which are so generally observed that 
they may be claimed as virtual rules of International Law. One 
of these is that the names of the crimes enumerated in Extradi- 
tion Treaties should be construed in accordance with the law 
which prevails in the State which asks for the surrender of the 
fugitive criminal. In other words, the name of the crime is to 
be determined rather by the law which has been violated than 
by the law of the county in which the fugitive is found. Thus, 
our Supreme Court held that the Spanish word falsificacion used 
as a corresponding word for forgery in the Mexican text of the 
Treaty of 186 1 was equivalent to a charge of forgery, even though 
the crime committed (that of forgery of theatre tickets) might 

ExtradUiony {27, pp. 33 ff.; 4 Ibid,, Digest, i 581, pp. 249 ff.; Spear, ExtradiUony 
i~3i 6, 43; Dana's Wbcaton, § 115, note 73; Woolsey, { 78. 

In England it is held that the common law gives the Government no right to 
surrender an alien. The Crown may negotiate extradition treaties, but they are 
given effect by Orders in Council under the authority of an Act of Parliament. 
See Clarke, Extradition, ch. 5. 

^* The Extradition Act of Great Britain (1870) specified the following crimes 
as extraditable: murder, and attempt and conspiracy to murder; manslaughter; 
counterfeiting and altering money and uttering counterfeit or altered money; 
forgery, counterfeiting, and altering, and uttering what is forged or counterfeited 
or altered; embezzlement and larceny; .obtaining goods or money by false pre- 
tences ; crimes by bankrupts against bankruptcy law ; fraud by a bailee, banker, 
agent, factor, trustee, or director, or member, or public officer of any company 
made criminal by any Act for the time being in force; rape; abduction; child 
stealing; burglary and housebreaking; arson; robbery with violence; threats 
by letter or otherwise with intent to extort; piracy by law of nations; sinking 
or destroying a vessel at sea, or attempting or conspiring to do so; assaults on 
board a ship on the high seas with intent to destroy life or to do grievous bodily 
harm ; revolt or conspiracy to revolt by two or 'more persons on board a ship on 
the high seas against the authority of the master. 

To this list the Extradition and Slave Trade Acts of 1873 added the following; 
kidnapping and false imprisonment; perjury, and subornation of perjury; and 
slave trading. See Biron and Chalmers, 78-79, 88. For commentary on Ex- 
tradition Act of 1870, see Piggott, Extradilion (1910), ch. 3. 

Art. 27 of the Jay Treaty of 1794 with Great Britain merely provided for ex- 
tradition in case of murder or forgery. The Treaty of 1842 enumerated seven 
extraditable crimes; the Convention of 1890 with Great Britain adds twenty 
more. 



INDIVIDUALS AS OBJECTS 267 

not be forgery at common law — a point which was left imdeter- 
mined.^* 

Another rule now fully established is that a criminal cannot 
be tried for any other crime than that named in the warrant of 
extradition.^ 

It is also customary, at least in England and the United 
States, before a warrant of extradition is issued, to require such 
evidence of guilt as, according to the laws of the coimtry where the 
fugitive is found, would justify his (or her) commitment for 
trial if the crime had been there committed. But this can 
hardly be considered a principle of International Law, for a 
State has discretionary power in this matter. In England and 
the United States aliens have the privilege of habeas corpus. 

253. Political Offenders. — There is one class of ofiFenses 
which are not extraditable, according to modem usage. It is 
now universally held that political olBfenders are exempt from ex- 

^* Benson v. McMahon (1888), 137 U. S. Rq>. 457, 466. Cf. In re Fara, 7 
Blatch. 345. On these two cases, see Hawley, Int. ExIradUian, 5-7 ; and 4 Moore, 
Digest, pp. 276-278. 

^ See especially United States v. Rauscker (1886) 199 U. S., 407, and Scott, 274. 
Prior to this important decision, judicial opinion in the United States had been 
divided. For the cases, see Snow's note in Scott, 282, or Snow, Cases, 158. 

During the famous Winslow controversy between the United States and Great 
Britain (1876), Secretary Fish contended that a person could be indicted and tried 
for an offense other than that for which he had been extradited. Lord Derby,, 
on the other hand, claimed that it was " an essential principle of extradition '' 
that a person surrendered for one offense should not be tried for another. 

Before the requisition for Winslow's extradition had been presented at 
London, the British Minister at Washington suggested that it would probably 
be refused unless the United States entered into a stipulation that Winslow would 
not be tried for any other offense than that for whidi he was to be surrendered. 
As a consequence of this difference, the execution of the treaty of 1842 was sus- 
pended until the British Government temporarily receded from its position. 

On the Winslow Case, see especially Hawley, Extradition, 8-13 ; * i Moore, 
Extradition, 106-219; 4 Ibid., Digest, § 456; *2 Wharton, Digest, § 270. For 
further references on this case and an excellent summary of the judicial history 
of this subject in the United States, see 4 Moore, Digest, pp. 308-11 1. 

The rule is different in "Inter-State Rendition" or the I^w of Extradition 
between States of the American Union. In the States persons can be tried for 
crimes other than those for which they have been extradited. It has even been 
held that persons kidnapped in one State and carried forcibly into another may 
be tried. The State Courts merely assert jurisdiction ; they will not inquire into 
irregularities of this kind. For citation of numerous cases, see State v. Patterson 
(1893), 116 Missouri, 50S, and Scott, 283. On "Interstate Extradition,^' see 
especially i Willoughby, The Const, Law of the U. 5. (1910), ch. 14. 



268 ESSENTIALS OF INTERNATIONAL PUBUC LAW 

tradition process.^ But there is unfortunately no agreement as 
to the nature or content of a political offense, and no satisfactory 
definition of a political crime has as yet been evolved. 

254. Difficulties of Definition and Apfilication. — The difi&cul- 
ties of definition^ and its application arise from two sets of facts. 

^ This exemption holds, whether expressed in treaties or not. 

The recognition of the non-extradition of political offenders as a general prin- 
ciple of conduct dates from the European Revolutions of 1830 and 1S48, though 
it may be said to owe its origin to the French Revolution of 1789. It was par- 
ticularly England, Switzerland, France, Belgium, and the United States who 
championed the cause of political freedom. In 1830 even Austria and Prussia 
refused Russia's demand for the extradition of Polish refugees. But a reaction 
set in (1833) when .\ustria, Prussia, and Russia concluded agreements stipulating 
that persons who had committed high treason and Use majestic or who were guilty 
of conspiracy or revolt against a throne or legitimate government should be sur- 
rendered. The same year (1833) Belgium passed her famous Extradition Law 
(see supra, p. 264) which expressly forbade the extradition of poUtical offenders 
— a provision which Gnds its Grst incorporation in a modem treaty in the Con- 
vention of 1834 between Belgium and France. Since x866 even Russia has felt 
herself obliged to agree to the non-extradition of political offenders. Grivaz, 
Nature et ejffecis du principe de VasUe politique, ch. 2 ; and Martitz, Intemaiionale 
Rechtshilfe in Strafsachenj 134-184. For a good summary', see i Oppenheim, 

§ 133. 

^" For various definitions of a political offence, .see 2 Calvo, § 1034 ; and 3 P.- 

Fod6r6, No. 1872. One of the best characterizations is that by Lord Denman in 

the Castiuni case (1908), i Q. B. Div. 14Q, and Scott, 285 : 

"The question really is whether, upon the facts, it is dear that the man was 
acting as one of a number of persons engaged in acts of violence of a poUtical char- 
acter with a political object, and as part of the political movement and rising in 
which he was taking part." 

This b the solution adopted by the Swiss Extradition Law of 1892. "Art. 10 
recognizes the non-extradition of political criminals, but lays down the rule at the 
same time that political criminals shall nevertheless be surrendered in case the 
chief feature of the offense wears more the aspect of an ordinary than of a poUt- 
ical crime, and that the decision concerning the extraditability of such criminals 
rests with the Bundesgericht, the highest Swiss Court of Justice." i Oppenheim, 

§ 337. 

Arts. 13, 14, and 15 of the Oxford Rules adopted by the Institute of International 
Law as modified at Geneva in i8q2 declare : 

"Art. 13. Extradition is inadmissible for purely poUtical crimes or offenses. 

"Nor can it be admitted for unlawful acts of a mixed character or connected 
with political crimes or offenses, also called relative poUtical offenses, unless in 
the case of crimes of great gravity from the point of view of moraUty and of the 
common law, such as murder, manslaughter, poisoning, mutilation, grave wounds 
inflicted wilfully ^^ith premeditation, attempts at crimes of that kind, outrages 
to property by arson, explosion or flooding, and grave robbery, especially when 
committed with arms and violence. 

"So far as concerns acts committed in the course of an insurrection or of a 
rivil war by one of the parties engaged in the struggle and in the interest of its 



INDIVIDUALS AS OBJECTS 269 

In the first place, a crime may be purely political or it may have 
a double motive or end — it may be partly political and partly 
personal or private. Such crimes have been named dUits con- 
nexes (mixed) by French publicisis. In the next place, a crime 
may be political in appearance, but really private or vice versa. 

In the latter case, no serious difficulty presents itself, provided 
the facts are clearly established. For the determination of these 
facts, a judicial inquiry would seem to be desirable. A more 
serious difficulty arises in the case of mixed crimes. Here it may 
be extremely difficult or well-nigh impossible to determine the 
dominant or controlling motive or purpose, as where theft, arson, 
or homidde, have been committed. In these cases, too, a judicial 
decision based on a thorough investigation would seem to be the 
best solution. 

Then, too, a political crime may be of such a gross and outra- 
geous character, as in the case of the assassination of a constitu- 
tional sovereign or chief of State, that it is not to the interest of 
other States to refuse extradition. Such cases should be ex- 
empted from the operation of the rule that political offenders 
are not extraditable.^ 

cause, they cannot give occasion to extradition unless they are acts of odious bar- 
barism or vandalism forbidden by the laws of war, and then only when the civil 
war is at an end. 

**Art. 14. Criminal acts directed against the bases of all social organization, 
and not only against a certain State or form of government, are not considered 
political offenses in the application of the foregoing rules. 

"Art. 15. In any case, extradition for crimes having the characters both of 
political and common law crime ought not to be granted unless the demanding 
State gives the assurance that the person surrendered shall not be tried by ex- 
traacdlnary courts." As translated by i Westlake, 246-247. For the French 
text see 12 Annuaire^ 182, and Tableau ^ 1 01 -102. 

These rules have been criticised, but they seem to embody the best opinion 
on this subject. 

^* See Arts. 13 and 14 cited above. There is still considerable difference of opin- 
ion respecting anarchistic and nihilistic attempts and attacks upon the life of a 
reigning sovereign or Chief of State. Many States have accepted the so-called 
attentat clause enacted by Belgium in 1856. This clause stipulated that the murder 
of the head of a foreign government or of a member of his family should not be con- 
sidered a political crime, i Oppenheim, § 335. The United St ates has even included 
it in a few of its Extradition Treaties. For clauses dealing with political offenses in 
Extradition Treaties between the United States and other countries, see Supple- 
ment to 3 A. y. (1909), 144 ff. 

As Oppenheim (I, § 339) justly observes : "The Belgian clause goes too far, since 
exceptional cases of murder of heads of States from political motives or for political 



27© ESSENTIALS OF INTERNATIONAL PUBLIC LAW 



V. The Right op Asylum 

255. The So-caUed Right of Asylum. — This so-called rig^t 
applies especially to criminals, political refugees, and slaves, 
and has been claimed on warships, in legations, and even on mer- 
chantmen in the case of political refugees, who, having escaped 
to another coimtry, take passage on a foreign merchant vessel 
for a third country, said vessel being bound on a voyage which 
includes calls at ports of their own country." 

purposes might occur which do not deserve extradition. " There have been attempts 
of this nature which were either legitimate as part of a political insurrection or which, 
because of the tyranny and oppression ezerdsed, arc not condemned by the mc»aL 
sense of mankind. 

On the other hand, mere anarchistic attempts should receive no quarter. Social- 
ists, however, stand upon an entirely different footing, for their efforts are not 
''directed against the bases of all social organization"; they aim at the reoiiganiza- 
tion of society on a juster and sounder foundation. 

It should be added that press offenses are usually regarded as political 

On Political Offenses, see especially Bluntschli, Art. 396 ; * Bonfils, Nos. 466- 
472; Bry, No. 329; 2 Calvo, §§ 1034-1045; i Cobbett's Cases (3ded.), 238-239^ 
240-241 ; Despagnet, No. 304 B. ; Diena, in 2 R. D. I. P. (1895), 306 ff.; * Grivaz, 
Nature et efets du principe de Vasile politique (1895) ; Lawrence, PrincipUs (3d ed.),, 
§ 133; Ibid. (4th ed.), § in, pp. 262 ff.; Liszt (3ded.), S32; Lamasch, ii^ 
3 Holtzendorff, 485 ff. ; Ibid., Auslieferungspflicht und Asylrecht (1897) ; * 2 M£rign- 
hac, Traiti, 754-777 ; * 4 Moore, Digest, § 604; * Ibid,^ Extradition^ 303-326; 3 F. 
de Martens, § 96 ; * Martitz, Internationale Recktshilfe in Str<rfssachen (i 888-1 897) ;. 
* I Oppenheim, §§ 333-340; * 3 P.-Fod6r6, Nos. 1 871-1873 ; Renault, in 7 J.I. P., 
65 ff. ; I Rivier, 351-357 ; Rolin, in 12 Annuaire, 156 ff.; /fritf., 24 and 26 R. D. /., 
285-293 and 125-152; * Scott, Cases, 285-293; *Snow, Cases, 161-171; Soldan, 
Extradition des criminels politiques (1882) ; Taylor, § 212; Ulmann (2nd ed.), f 129, 
IV; I Westlake, 247-248. 

The student should especially study the case of In re Castini (1890), L. R. Q. B.,. 
Div. 149, and Scott, 163, or Snow, 285. See also the cases of Caxo, i Moore, on 
Extradition, 324, and Snow, 161 ; The St. AUtan's Raid, 1 Moore, 322, or Snow, 162 ; 
the Salvadorean Refugees and San Ignacio Raid, in 4 Moore, Digest, § 604, pp. 334 ff.;. 
and the case of Rudonvitz, Maxey, in the Green Bag for April, 1909. 

^ In the Barrundia case (1890), Mr. Mizner, U. S. Minister to Central America, 
was unjustly censured and recallcxl by President Harrison for having advised the 
surrender of General Barrundia, a Guatemalan political refugee who had taken pas- 
sage on the Padfic Mail Steamer, then anchored in transit in the port of San Jos6 
de Guatemala. General Barrundia resisted capture and was kflled. 2 Moore, 
Digest, § 307, pp. 871-877. Secretary Blaine's labored defense of our Government's 
position in this case fails to cany conviction. A more correct statement of the law 
is that of Secretary Bayard in the case of Gdmez (2 Moore, pp. 867-868, and Snow,. 
Ca^es, 149). See also the case of Sotclo, 2 Moore, 856, Snow, 147, and Scott, 
2 73~2 75 n- Ii^ 1^3 Honduras promptly disavowed all responsibility for the firing 
upon the American steamer Costa Rica because her captain refused to surrender Dr. 
Bonilla, a political refugee. 2 Moore, pp. 879 ff. 



INDIVroUALS AS OBJECTS 271 

There is no right of asylum appertaming to individuals. So 
far as this so-called right exists, it belongs to the State ; but to 
this right there is attached no corresponding duty. 

In the absence of treaty obligation, every State has of course 
the right to give or withhold asylum to foreigners, including 
criminals, political offenders, and fugitive slaves. But it has 
no right to harbor criminals either on its warships or in legations.^^ 
It is also agreed that, except in Spanish-American States (where a 
special usage seems to have obtained recognition) and perhaps in 
the Orient, legations and consulates no longer have the right of 
granting asylum to political refugees.^ 

A different practice appears to obtain in the case of warships. 
It would seem that according to general usage, commanders of 
warships may, imder circumstances of serious danger and at their 
discretion, grant asylum to political refugees from motives of 
hxmianity upon condition of observing a strict neutrality between 
both parties. But asyliun should never be offered nor should 
the refugees be permitted to maintain communication with the 
shore. The same principles probably extend to fugitive slaves." 



*^ See infra f }} 209, 278. In no case may a process be served on board a public 
vessel, nor can one charged with crime be even forcibly removed. Ordinary crim- 
inals should be given up upon proper demand. But the demand should be made 
diplomatically and, in extreme cases, the vessel might be refused the hospitab'ty of 
the port. 

The immum'ties of legations are not as great as those of warships. It is now gen- 
erally admitted that an ambassador or other foreign minister cannot afford shelter 
to ordinary criminals, even to servants of the embassy, if the offense charged is com- 
mitted outside the minister's residence. But the arrest should, if possible, be 
arranged diplomatically, and the convenience or wishes of the minister should be 
carefully consulted. See infra, p. 294 as to the time and mode of arrest. 

" The right of asylum of legations has almost disappeared in European practice. 
The classic case is that of the Duke of Ripperda (i 726). See Ch. de Martens, Causes 
cHAreSf 174, and Snow, Cases y 139. But owing to the frequency of political 
revolutions, it still persists in Spanish-America and perhaps in Spain where it was 
revived during the Carlist Wars in the middle of the nineteenth century. There 
was a case in Spain as late as 1873. There have also been a few qxyradic cases in 
southeastern Europe, one in Greece (1862), and one in Constantinople (1895). 
The practice also obtains in some parts of the Orient. 

The United States discourages the practice in Spanish- American States, but does 
not prohibit it entirely. For the opinion of Secretary Fish and the Instructions to 
diplomatic agents issued by our State Department on this point, see Snow, Cases j 
142, and Ibid., Inl, Law, 28. See also 2 Moore, Digest, §{ 295-304, particularly 
§ 300, for the views of Secretary Fish. 

" For the instructions of the British Admiralty and the Regulations of the 



272 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

BIBU06RAP&T 

Right of Asylum. — Bluntschli, Arts. 381-398; Bl^teau, De Pasyle^ 
etc. (1886) ; * Bonfils (Fauchille), Nos. 622, 696-698; Bry, Nos. 198, 200, 
250; I and 3 Calvo, §§ 469-471, 1521 ff.; Despagnet, No. 349; * Gilbert, 
in 15 Harvard Law Rev. (1901), 1 18-139; /Wrf-i in 3 ^. /. (1910), 
562-595; *Hall (5th ed.), 182-183, I9<^i97» 213-215; Heffter, §§ 61-63, 
212; Lawrence (3d ed.), § 130; lind, (4th ed.), § 108; 2 F. de Martens, 
§§ 12, 56; 2 Moore, Digest, §§ 291-307; /Wrf., in 7 Pol. Sci. Quar. (1892), 
I f!., 197 f!., and 397 ff. ; Ibid., on Extradition, §§ 205 ff. ; i Oppenheim, 
§§316, 390, 450; 2 Perels, 125-131 ; *3 P.-Fod6r6, Nos. 1416-1425; Ibid., 
in 2 Cours de droit diplom., 88 ff. ; i Rivier, 314, 499-502; Scott, Cases, 
256 ff. ; * Snow, Cases, 139-150; * Ibid., Int. Law, § 18; Sibley and Eiias, 
The Aliens Act and Right of Asylum (1906) ; Stoerk, in 3 Holtzendorff, 
465 ff., 485 ff. ; Taylor, §§ 186, 256-260, 271, 311-312; i Wharton, Digest, 
§ 104; I Westlake, 257-262, 271-274; Wilson and Tucker, 127, 146, 185- 
186; Wilson, 118, 172. 

Nationality, Naturalization, Expatriation, an Citizenah^. — Andreani, 
La condition des strangers in France (1907) ; Arts. ** Aliens," " Citizens," 
and " Extradition," in 2, 7, and 19 Cyc. of Law and Procedu e, 81-130, 
132-148, and 50-100; Arts. " Aliens," '* Citizenship," and ** Naturaliza- 
tion," in American and English Encyc. (including Supplement) ; Arts. 
" Aliens," etc., in Am. Digest (1897 to 1906), December ed., and 
"Aliens,", etc., in Annotations to Cyc. for references to recent cases; 
Bluntschli, Arts. 364-374; * Bonfils (Fauchille), Nos. 417-432; 2 Calvo, 
§§ 539~654J 6 Ibid., §§ 92-117; i Cobbett, Cases, 170-196; Cockbum, 
Nationality (1869) ; * Cogordan, La nationality, etc. (2d ed., 1890) ; Davis 
(3d ed.), ch. 4, pp. 1 3 5-1 5 1 ; Del6caille, De la naturalization (1893) ; Des- 
. pagnet, Nos. 329-344 ; Ibid., Droit int. privS (5th ed., 1909), liv. I ; * Dicey, 
Conflict of Laws (1908), Bk. 1, ch. 3, xxxvii-xliii and 164-191 ; i Fiore, Nos. 
644-658, 684-717 ; De FoUeville, Traits de la naturalization (1888) ; Foote, 
Private Int. Jurisprudence (3d ed., 1904), ch. i ; Franklin, The Legislative 
History of Naturalization in the United States (1906) ; * HaU (6th ed.), Pt. 
II, ch. 5; * Ibid., Foreign Powers and Jurisdiction, etc., § 14; i Halleck 
(Baker's 3d ed.), ch. 12 ; * Garner, Introduction to Pol. Sci. (1910), ch. 11 ; 
Howard, The German Empire (1906), ch. 8 ; Heffter (Geffcken), § 59 ; Kleen, 

United States Navy on these points, see 2 Moore, Digest, { 305, and Snow, Int. Law, 

29- ^^ 

Art. 28 of the General Act of the Brussels Conference of 1890 provides that any 

slave who may have taken refuge on board a ship of war flying the flag of one of the 

Signatory Powers shall be immediately and definitely freed ; such freedom, however, 

shall not withdraw him from the competent jurisdiction if he has committed a crime 

or offense at common law." On Fugitive Slaves, see especially Perels, 1 26-1 31. 

For the rule respecting the reception of political refugees on board a warship in 

foreign ports adopted by the Institute of Int. Law, see 17 Annuaire (1898), 278. 

For an interesting controversy on this point between Brazil and Portugal, in 1894, 

see Chronique, in i R. D. I. P. (1894), 273 ff. ; Ferrao, in 26 R. D. I. (1894), 378 ff.; 

;ind 2 Moore, Digest, § 305, pp. 853 ff. 



INDIVIDUALS AS OBJECTS 273 

in s R.D. /. P. (1896), 429 ff. ; * Arts, on " Nationality " and " Naturaliza- 
tion/' in Lalor, Cyclopedia of Poliiical Science^ etc. ; De Lapradelle, De la 
noHonalUi (1893); Lawrence (3d ed.), §§ 114-116; Ibid, (4th ed.), §§94* 
96; *Lefar, La' nalionalitif etc. (1909); G. de Leval, La protection diplo- 
matique des nationaux a Vitranger (1907) ; Liszt (3d ed.), § 79 ; i and 2 F. de 
Martens, §§85-87 and 44-48 respectively; De Martitz, Das Recht der 
Staaisangehdrigkeit (1885) ; Meili, Int, Civil and Commercial Law (trans, by 
Kuhn, 1905), 119-128; *McGovney, in 5 A. J. (1911), 325 ff. and in 11 
Columbia Law Rev. (191 1), 231 ff. and 326 ff. ; * Moore, American Diplo- 
macy^ ch. 7 ; *3 Ibid., Digest, ch. 10; 3 Ibid., Int. Arbitrations, 2449-2655; 
2 Nys, 214-220; *i Oppenhcim, §§293-313; i Phillimore, §§325-332; 
* Piggott, Nationality, etc. (1907) ; 3 P.-Fod6r6, Nos. 1645-1691 ; i Rivier, 
204-213, 303-309; Salmond, in 17 and 18 Law Quart. Rev., 270-182 and 
4^3; Snow, Cases, 212-280; * Scott, Cases, 370-398; Ibid., Int. Law, 
§§ 29-31 ; * Sieber, Das Staatsburgerrecht, etc., 2 vols. (1907) ; Stoerk, in 
2 Holtzendorff, 583 ff. ; Ibid., m 2 R. D. I. P. (1895), 273 ff. ; Taylor, 
§§ 172-183 ; Ullmann (2d ed.), §§ 108-112 ; Van Dyne, on Citizenship (1904) ; 
Ibid.^ on Naturalization (1907) ; Vattd, liv. I, §§ 212-223 ; Walker, Manual^ 
§ 19; Ibid., Science, 204-218; Webster, Law of Naturalization (1895); 
I Weiss, Traite de droit int. privS (1907) ; Ibid., Manuel, etc. (1909), liv. 
I; I Westlake, ch. 10; Ibid., Private Int. Law (4th ed., 1905), ch. 15; 
I Wharton, Conflict of Laws (3d ed., 1905), §§ 5-14; 2 Ibid., ch. 14; 2 
Ibid., Digest, §§ 171-198 ; Wheaton (Atlay's ed.), §§ 85, 151 A, 151 H, 151 T. ; 
Ibid. (Dana's ed.), § 85 and note 49; Willoughby, The Const. Law of the 
U. S. (1910), chs. 17-19; Wilson, §§ 44-47. 

Domicile. — Art. on "Domicile" in 14 Cyc, 831-870; 2 Calvo, 
§§ 655-697; I Cobbett, Cases, 206-212; Davis (3d ed.), 156 ff.; * Dicey, 
Conflict of Laws (1908), Bk. I, ch. 2, xxxv-xxxviii and 82-163 ; Foote, 
Private Int. Jurisprudence, ch. 2; Hall (6th ed.), 238-241, 277, 491-494; 
I Halleck (3d ed.), 415 ff. ; Jacobs, Law of Domicile (1887); Lawrence 
(3d ed.), §§ 117, 177; Ibid. (4th ed.), §§ 97, 148, 151; 2 F. de Martens 
§§ 69, 76, 77, 80 ; * 3 Moore, Digest, ch. 1 1 ; * 4 Phillimore, chs. 4-14 ; Story, 
Conflict of Laws (8th ed., 1883), ch. 3 ; Taylor, §§ 170, 172, 179, 202 f., 517 ; 
I Twiss, §§ 168-171 ; Walker, Manual, § 40; Ibid., Science, 251 ff. ; 1 West- 
lake, 203-206 ; Ibid., Private Int. Law (4th ed., 1905), chs. 2 and 14 ; * Whsa- 
toTL, Conflict of Laws, (3d ed., 1905), ch. 2, §§20-80; Wheaton (Atlay's 
ed.), §§ 81-94, and Pt. II, ch. 2 a, §§ 151 a-151 t, 318-339; Ibid. (Dana's 
ed.), note 55; i Willoughby, op. cit., § 122; Woolsey, §§ 71-72, 74, and 
App. II, pp. 502 ff. 

Rights of Emigration, Immigration, Exclusion, and Jurisdiction over 
Aliens. — Berc, De Vexpvlsion des Strangers (1888) ; Bleteau, De Vasile et 
du droit d*expuhion (1886), 305 ff. ; Bluntschli, Arts. 375-381-393 ; * Bonfils 
(Fauchille), Nos. 410-416, 433-454; 2 and 6 Calvo, §§ 700-706 and 119- 
125 ; * Despagnet, Nos. 340-355 ; Davis (3d ed.), 1 51-156 ; F^raud-Giraud, 
Droit d'expulsion (1889); * Hall (6th ed.), 49-50, 205-213; i Halleck 
(Baker's 3d ed.), 290 f., 419 n., 460, 558 n. ; Heffter (Geffcken), §§ 60-62; 
I Fiore, Nos. 486-493, 699, 712 ; Langhard, Das Recht der politischen Fremd- 



274 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

ausweisung (i^i) ; Lawrence (jded.), §§ ii8~i2i; IM. (4th ecL), §§ 98, 
loi ; G. de Leval, La proiectian diplamaiique^ etc., §§ 72 flf. ; Liszt (3d ed.), 
S 25; I G. F. de Martens, 83-100; i F. de Martens, §{ 79, 86; 2 Ibid.^ 
§§ 44, 70, 81 ; * Martini, VexpuUion des Grangers (1909) ; M£dedn, ^ude 
sur Vadmissum des Grangers en France (1909) ; * 4 Moore, Digest, clu 13 ; 

2 Nys, 22^243; *! Oppenheim, §§314-3^; i Phillimore, §{317-335; 

3 P.-Foder6, Nos. 1857-1859; i Rivier, 137, 307-314. 337-347; Rolin- 
Jacquem3rnSy in 20 R. D. I. (1888), 499 and 615 ; Sibley and Eiias, The Aliens 
Act, etc. (1906) ; Snow, § 31 ; Stoerk, in 2 Hohzendorff, 630-656 ; Taylor, 
§§ 173, 186-187, 201-203, 467; Thomas, in 4 R, D. I. P. (1897), 620 ff. ; 
XJIlmann (2nd ed.), §§ 113-116; Vattel, liv. I, § 213 ; Ilnd., liv. n, §§ 100- 
115; Walker, Manual, § 19; Weiss, Manuel de droit int. prioi (1909), liv. 
II, 211-337; 2 Ibid., Traits, etc. (1907); i Westlake, 208-212, 313-316; 
2 Wharton, Digest, §§ 201-206 ; Wheaton, §§ 82, 113, 140 flf. ; * i WOlouisJiby, 
op. cU., ch. 16 ; Wilson, § 48 ; Woolsey, §§ 65-67. 

Extradition. — Von Bar, Lekrbuck des int. Prtoat- und Strafrechts 
(1892) ; Beauchet, TraiU de Vextradition (1899) ; * Bernard, TraiU de 
Vextradition (2d ed., 1890) ; Biron and Cludmers, The Law and Practice 
of Extradition (1903) ; Bluntschli, Arts. 394-401 ; * Bonfils (Fauchille), 
Nos. 455-481; Bry, Nos. 320-331; 2 Calvo. §§ 949-1071; ♦Clarke. 
Extradition (4th ed., 1903) ; Delius, Das Auslieferungsrecht (1898) ; ♦ De- 
spagnet, Nos. 289-315; F6raud-Giraud, Z>r r extradition (1890); Fiore, 
TraiU de droit penal et de Vextradition (trans, by Antoine, 1880) ; Hall (6th 
cd.), 57-58; I Halleck (Baker's 3d ed.), 235-239, 257-268; Hawley, The 
Law of Int. Extradition (1893) ; Heffter (GefiFcken), § 63 ; * Lamasch, ^im- 
lieferungspflicht und Asylrecht (1887) ; Ibid., in 3 Holtzendorff, 345-579 ; Law- 
rence (3d ed.), §§ 132-134; Ibid (4th ed.), §§ iio-iii; 3 F. de Martens, 
§§ 84-98 ; ♦ Martitz, Int. Rechtshilfe in Strafsachen, 2 vols. (1888-1897) ; 
*4 Moore, Digest, ch. 14; * Ibid., Extradition (1891); 2 Nys, 244-256; 
I Phillimore, §§ 363-389 d ; * Piggott, Extradition (^910) ; Pomeroy, §§ 198- 
201 ; 3 P.-Fod6r6, Nos. 1 863-1 893 ; i Rivier, 348-357 ; Spear, The Law 
of Extradition (1884) ; De Stieglitz, Etude sur Vextradition (1883) ; Taylor, 
§§205-212; I Twiss, 405-417; Ullmann (2nd ed.), §§ 1 27-131; Walker, 
Science, 232-238; * i Westlake, 153, 210, 242-251; Wheaton, §§ 115-121; 
Wilson, § 49; Wilson and Tucker, § 67; Woolsey, §§ 77-78; 2 Wharton, 
Digest, §§ 268-282. 

For Bibliogn^hies on Extradition, see especially, Beniard, and Bonfils. 



PART m 

INTERCOURSE OF STATES 
CHAPTER XVn 

SIGHTS AND DUTIBS OP DIPLOMATIC A6BNTS AND SOVEREIGNS 

I. Diplomatic Agents 

256. The Head or Chief of State. — The supreme organ and 
representative of a State in its diplomatic relations is the Head or 
Chief of the State. He may be either a monarch or a President.^ 
He represents the State in its international relations with all 
other sovereigns; and, if traveling or resident in other States, 
is entitled to certain honors and marks of respect.^ His person, 
residence, and suite are inviolable, and he is exempt from local 
jurisdiction in criminal and dvil, as also in certain fiscal mat- 
ters. It will be more convenient to consider these immunities 
after we have studied those of diplomatic agents.' 

257. Minister of Foreign Affairs. — The actual control or 
management of international relations is usually in the hands of 
the Secretary or Department of State for Foreign Affairs.* He 
supervises the work of public ministers and other diplomatic 
agents sent abroad, and he conducts the business of the State in 
its relations with the various members of the diptotnalic corps? 

' The monarch or President may be the nominal rather than the real Head of the 
State, as in the case of the King of England and the President of France. In 
Switzerland, which has a plural executive, the President of the Federal Council 
represents the State in its international relations. 

' Unless he chooses to remain incognito. On this subject, see especially i 
P.-Fod6r6, Cours de droU diplomatique (2nd ed., 1899), chs. 2 and 4. 

• See infra f § 281. 

* On the Organization of the Departments of State and the Duties of a Minister 
4>f Foreign AffairSy see i P.-Fod6r6, Corps, ch. 6; Foster, Am, Diplomacy , 103-135 ; 
and Schuyler, Am. Diplomacy , 1-40. For a History of the Department of State of 
the United States, see a series of articles by Gaillard Hunt, in 1-5 A, J. (1907- 
191 1), passim. 

' The diplomatic corps consists of all the ministers of diplomatic agents accredited 

275 



276 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

258. The Right of Legation. — The main instruments of 
diplomatic intercourse are public ministers or other diplomatic 
agents. Every sovereign State enjoys the active and passive 
rights of legation or representation, i.e. the rights of sending and 
receiving diplomatic agents.* But there is no corresponding 
obligation to send and receive foreign ministers, though a State 
which refused all diplomatic intercourse would practically lose its 
membership in the international commimity. 

259. The Right to refuse a Particular Individual. — Each 
State is free in tiie choice of its agents, though the Government to 
which they are accredited is not, strictly speaking, bound to re- 
ceive them. It may refuse to enter into or to continue diplomatic 
relations with a particular State, but imder certain circimistances 
such refusal might be construed as unfriendly, or even hostile.^ 
It may, of course, refuse to enter into negotiations which 
have a particular purpose. A State may decline to receive a par- 
ticular agent who is persona non grata, one of its own citizens or 
subjects, or one whose duties or powers are deemed incompatible 
with the institutions of the receiving State.* 

But the grounds for rejection should not be frivolous and should 
be clearly stated, if possible.' In order to avoid unpleasant inci- 
dents of this nature, it is customary (though not obligatory) to 

to a particular government. It possesses a certain sense of solidarity or collectivity 
and sometimes speaks with a certain authority, more particularly in the Orient, on 
questions of ceremony or diplomatic etiquette; but it is in no sense a legal or even 
a political personality. Its members are completely independent of one another. 
The dean or presiding officer of the diplomatic corps is usually its oldest ranking 
member or the Papal Nuncio. The term is also sometimes applied to all the diplo- 
matic agents sent abroad by a particular State. 

On the diplomatic corps y see especially 2 Fiore, No. mi; i P.-Fod6r6, op, cit., 
253-256; and I Rivier, 452-453- 

* But the exercise of this right is discretionary. Several authorities (Heilbom, 
182, and Wheaton, § 207) claim that this is a mere competence rather than a righL 
It would seem to be both. It is in fact a fundamental right of States. See supra, 

§ 148. 

Part-sovereign States may enjoy a more or less limited right of legation. See 

suproy §§ 101-105. The Pope enjoys the right by courtesy based on traditional 

usage, but his agents are not real international functionaries. See supra, § 89, p. 95. 

' See infra, §§ 267-269. 

' Thus, Protestant States do not, as a general rule, receive Papal envoys. Most 
countries, including the United States, will not receive their own nationals. A 
persona non grata is one who is unacceptable on personal or political groimds. 

' England insists upon a statement of the grounds of rejection in all cases. But 
her practice appears to be exceptional. It is not legally obligatory. 



RIGHTS AND DUTIES OF DIPLOMATIC AGENTS 277 

make confidential inquiries beforehand as to whether the appoint- 
ment of a certain person would be agreeable to the Government 
of the country to which he is to be accredited. This custom is 
usually referred to as Vagreation (agreement) .^^ 

260. Duties of Diplomatic Agents. — The main duties or 
functions of permanent diplomatic agents are those of observa- 
tion, protection, and negotiation. It is the duty of the resident 
minister to observe and report upon all matters of interest to his 
Government, to protect by means of his mediation or good offices ^^ 
nationals of his own State against acts of iUegaUty and injustice 
in the coimtry to which he is sent, and to enter into negotiations 
for the purpose of settUng any outstanding difficulties between 
his own Government and that to which he is accredited. But 
he may perform other miscellaneous fimctions, such as the regis- 
tration of births, marriages, and deaths of his fellow nationals, the 
authentication of certain docimients, the issuance of passports, 
etc. In no case should he intervene in the internal affairs of the 
coimtry by which he has been received." 

261. Classification of Public Ministers. — In accordance with 
the rules adopted at the Congress of Vienna (181 5), supplemented 
by that of Aix-la-Chapelle (1818), public ministers are divided 
into four classes : 

(i) Ambassadors and Papal Legates or Nimdos." 

1" On Vagreation, sec especially 2 P.-Fod6r^, Coursj 395 ff. The United States 
has had several disagreeable experiences as a result of its failure to observe this 
custom. On the famous Keiley case, see 4 Moore, Digestj pp. 480-483. For this 
and other cases, see also Ibid.j § 638 ; * Hall (6th ed.), 293-394 and n. ; i Oppen- 
y^xaxn, §375; I Rivier, 456; Taylor, §§ 289-290; Foster, Practice of Diplomacy, 
ch. 3. 

Since the United States began to appoint ambassadors in 1893, it has observed 
the practice of agrealion for envoys of that grade. 

u But he should not act as an agent for the coUection of private claims. 4 
Moore, Digest, § 647. 

^ See I Moore, Digest, § 649, for the case of Gouoeneur Morris. 

On the Duties of Diplomatic Agents, see especially Bonfils (Fauchille), Nos. 
681-683; Despagnet, Nos. 229-230; * i Moore, Digest, §§ 647 ff. ; i Oppenheim, 
§§378-383; 1 ¥.'¥oA/h[€,Cours, ch. 10; Ibid., Traiti, Nos. 1346 ff.; *i Rivier, 
§ 37, pp. 467 ff. ; Foster, Practice of Diplomacy, chs. 5 and 6. 

>* It may be recalled that Papal Legates or Nuncios are no longer to be regarded 
as real public ministers since the abolition of the temporal power of the Pope in 1870. 
Ambassadors are supposed to represent the person and dignity of their sovereign 
in a personal sense and are entitled to precedence and special honors, such as the 
right of personal audience with the sovereign and royal honors generally. 



278 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

(2) Envoys, Ministers, or other persons accredited to Sovtf- 
eigns." 

(3) Ministers Resident accredited to sovereigns. 

(4) Charg6 d' Affaires accredited to Ministers for Foreign Affairs. 

262. Necessary Documents. — Before setting out on his mis- 
sion, a public minister is in general furnished by his home Gov- 
ernment with the following dociunents : 

(i) A Letter of Credence, stating the name, rank, etc., of the, 
agent, together with the general object of his mission, and besp)eak- 
ing for him full faith and credit in the conduct of the business 
with which he is charged. This Letter of Credence is usually 
addressed by his sovereign to the sovereign or Chief of State to 
whom he is accredited.** 

263. Pull Powers. — (2) Full Powers, or authority to negotiate. 
These Powers may be contained in the Letter of Credence " or 
conferred by letters patent. Their purpose is to define the limits 
within which the agent may negotiate and to what extent his 
acts may be considered binding on his Government. Full 
Powers are no longer interpreted or understood as legally binding 
upon the sovereign, the right to ratify being in all cases either 
expressly or tacitly reserved." 

264. Instructions. — (3) Instructions are directions furnished to 
the agent by his home Government, either at the beginning or 

'* This class may be said now to include Permanent Envoys, Ministers Pleni- 
potentiary, and Envoys Extraordinary. There b no substantial difference 
between the first three classes. 

For curious information and amusing incidents growing out of the struggles for 
precedence which formerly prevailed between public ministers, see Bernard, Lec- 
tures on Diplomacy f Lect. I; 4 Macaulay, History of Eng^nd (ed. 1855); ^^ 
Wicquefort, Vambassadeur et ses fonctions (1676). 

^* Except in the case of a Charg6 d'Affaires, when it is written by one Foreign 
Minister to the other. For details on Letters of Credence, Full Powers ^ Instruc- 
tions , etc. see especially i P.-Fod6r6, Cours, ch. 9, pp. 403 flF. ; * i Twiss, §§ aI^- 
2I4; and Wheaton, §§ 217-220. 

^* In case of a permanent minister, the Full Powers are usually inserted in the 
Letter of Credence or, rather, the Letter of Credence ordinarily serves as authority 
to negotiate. But when the mlmster resident b charged with a special task, as, 
for example, the negotiation of a commercial treaty, he is furnished with special 
letters patent for this purpose. Envoys or ministers sent to a Congress or Confer- 
ence are not generally furnished with Letters of Credence, but with General FuU 
Powers, copies of which are exchanged. Cf. Hall (6th ed.), 395 ; and i P.-FodM, 
op. cit., 422. 

17 On this much-controverted point, see infra, § 298. 



RIGHTS AND DUTIES OF DIPLOMATIC AGENTS 279 

in the course of his mission, to serve as a guide in his relation 
with the Government to which he is accredited or in the conduct 
of negotiations. They usually state the object of the mission, 
lay down rules for the transaction of his business, and inform 
him as to the extent of his powers or the real intentions of 
his Government. These instructions may be general or spedal, 
oral or written (they are usually written), secret or public. 
They may be changed or modified in the course of the nego- 
tiation." 

265. Other Documents. — (4) Special Passports and, in some 
cases, a Safe-canducL These contain a description of the agent's 
person and office and authorization to travel to the seat of the 
Government to which he is sent. (5) The Cipher or secret key 
for communication with the home Government. 

266. The Commencement of the Diplomatic Mission. — 
** When a diplomatic minister reaches the capital of the country 
to which he is accredited, he notifies his arrival to the Minister 
for Foreign Affairs and demands an audience of the Sovereign for 
the purpose of delivering his Letters of Credence. Ambassadors 
are entitled to a Public Audience, whereas ministers of the second 
and third classes have only a right to a Private Audience, and 
Charges d'Affaires are obliged to be content with an audience 
of the Foreign Minister.'* " Though it is only after this public 
reception that a public minister enters upon the actual exercise of 
his functions and is fully entitled to diplomatic privileges and im- 
munities as a matter of strict law,^ it is customary to accord them 

^' They are generally secret, and should not be communicated without the con- 
sent or direction of the home Government. It has happened that negotiators have 
been furnished with a double set of instructions — one secret, the other to be com- 
municated. Rivier (1, 464) justly observes on this point : "The respect and loyalty 
which States owe one another requires that these (instructions) be not contra- 
dictory." 

^ Lawrence, PrincipUs (4th ed.), p. 308. 

^ This appears to be the view of most of the authorities, but they are not all 
agreed upon this point. While international practice seems to support the opposite 
view from that set forth in the text, it is difficult to find in this custom a soimd basis 
for a principle of public law. As the diplomatic relation is a mutual one, it can 
scarcely be maintained that full or legal immunity can be conferred by the sending 
State alone. 

However, it would appear that a limited application of the principles of inviola- 
bility and immunity from arrest or detention apply during the voyage, even 
through third countries. The minister and his suite are protected by their pass* 



28o ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

these rights and immunities during their voyage to the seat of the 
Government to which they are accredited and while awaiting their 
formal reception. 

267. The Termination of Diplomatic Kissions. — Diplomatic 
missions terminate by the death or recall of the minister; the 
expiration of the term fixed for the duration of the mission; 
the success or failure of the object of the mission if it be of a 

ports or public character, provided the third State is not at war with the sending or 
receiving State. The case of Souli is an interesting one. In 1854 Mr. Sou]6, 
United States Minister at Madrid, was provisionally stopped at Calab, France, under 
an order of the French Minister of the Interior that he should be not allowed to 
'^penetrate into France'' without the knowledge of the French Government. 
Upon the protest of the United States Minister at Paris, the French Minister of 
Foreign Affairs replied that the Government of the Emperor had " not wished . . . 
to prevent an envoy of the Um'ted States crossing French territory to go to his post 
in order to acquit himself of the commission with which he was charged by his 
Government; " that "if Mh Soul6 was going immediately and directly to Madrid^ 
the route of France was open to him ;" that if, on the contrary, he "intended to go 
to Paris with a view of tarrying there, that privilege was not accorded him." It 
was explained that he had been stopped with a view of consulting him as to his 
intentions. 

It should be explained that Mr. Soul6 was a native of France and a naturalized 
American citizen. He had fought a duel with the French ambassador at Madrid 
and was reported to have criticised the Government of Louis Napoleon. 4 Moore, 
Digest, 55 f. 

On the RigfU of Transit or Innocent Passage of Public Ministers j particulariy as 
illustrated by the case of Souli, see especially 3 Calvo, §§ 1532-1536; Foster, Prac- 
tice of Diplomacy f 53 f. ; * Hall, 301 flf. and note on 302 f. ; * 4 Moore, Digest, § 643 ; 
I Oppenheim, § 308; Pomeroy, §§ 340 f. ; 3 P.-Fod6r6, Traits, No. 1257; Rivier, 
§ 39» PP- 508-512; Taylor, §§ 293-294; i Twiss, § 222; i Westlake, 264-265; 
Wheaton, §§ 244-247. 

The right for public ministers of innocent passage through third States and 
immunity from civil suit has judicial sanction, at least in the United States. See 
Wilson V. Blanco (1889), 56 N. Y. Superior Court, 582, and Scott, 206. This 
right probably exists to a certain extent even on belligerent or occupied territory. 
It is, of course, subject to the law of military necessity. 

During the siege of Paris, in 1870, the diplomatic corps protested against the 
refusal of Count Bismarck to permit them to correspond with their Governments, 
except by means of "open letters." The United States especially remonstrated 
against this refusal as an "uncourteous proceeding," and maintained that the 
rights of legation "must be regarded as paramount to any belligerent right" under 
the circumstances. 4 Moore, Z)fUM/, § 675, pp. 696-701. See also 3 Calvo, § 1538; 
Hall (6th ed.), 304 ff.; i Oppenheim, § 452 ; Pomeroy, § 341 ; Taylor, § 296; i West- 
lake, 265 ; and Odier, Des privileges des agents diplomatiques, 84-89. 

It is clear, at least since the discussions growing out of the Trent Affair (sec 

infra, p. 511 n.), that the diplomatic agent of an enemy State cannot be taken from 

a neutral vessel or on neutral territory. Neutral States have a right to the use 

of the high seas for diplomatic communication with either belligerent as well as 

' with one another. 



RIGHTS AND DUTIES OF DIPLOMATIC AGENTS 281 

spedal nature ; the death, abdication, or dethronement of the 
sovereign or Chief of State to whom or by whom the minister 
has been accredited ; ^^ dismissal or withdrawal as a con- 
sequence of some serious offence on one side or the other; a 
change in the rank or class of the agent or embassy ; a declara- 
tion or outbreak of war ; or a radical change in the form of gov- 
ernment of either country. In every case the diplomatic agent 
retains his privileges and immunities imtil his return to his own 
country. 

268. Recall of Ministers. — The normal and most frequent 
mode of termination is by RecaU. Before his departure, a 
public minister usually has another audience with the sovereign 
or foreign niinister, and presents his Letter of Recall. He re- 
ceives in return a letter or papers of commendation (leUres de 
ricriance)y his passport, and, at some courts, presents or decora- 
tions.** 

Just as a State may, on reasonable grounds, decline to receive 
any particular person as a public minister, so it may, at any time, 
demand the recall of a resident minister or other diplomatic 
agent,** for good and sufficient reasons ; if, for example, the 
minister has rendered further intercourse difficult or impossible 
or if he has made himself personally obnoxious to the sovereign 
or foreign minister of the Government to which he is accredited. 
Such a request, if made in good faith and for sufficient reason, 
should be at once complied with, but there can be no legal 
obligation in the matter.** The Government by whom the 

*^ In case of death, the Letter of Credence is usually renewed ; in case of abdica- 
tion or dethronement, the minister is provided with a new Letter. These rules do 
not necessarily apply to Chaig6s d'Affaires who are merely accredited by one Foreign 
Minister to another. A radical change in the form of government also requires 
new Letters of Credence. The election of a new President in a Republic does not 
terminate the mission. 

^ It was formerly a general custom to send presents to all departing ministers 
whose mission was not terminated abruptly. Fortunately, this custom has almost 
disappeared from international practice, but some courts still confer orders and 
decorations suitable to the rank of the minister. The United States set a good 
example in refusing to give or permit the acceptance of such presents or decorations. 
See especially Foster, Practice of Diplomacy, 141 ff.; 4 Moore, Digest j § 651 ; and 
3 P.-Fod6r6, TraiUy No. 1521. 

^ The sending State may of course recall any of its ministers or agents at its own 
discretion. 

** For the contrary but erroneous view, see 3 Calvo, § 1365 ; and i Halleck 



a82 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

minister has been accredited has the right to pass upon the 
facts and dedde for itself whether the conduct of its agent has 
been such or whether its interests in the premises are of such a 
nature as to make it desirable to comply with the wishes of the 
Government which has requested the recall. 



(3d Baker's ed.)» 366. For the oorrect view, see Hall (6th ed.), 298; 
(3d ed.), § 146; and Taylor, § 321. 

Generally speaking, the Continental authorities present a very inadequate or 
superficial discussion of this question. This nuiy possibly be due to the fact that 
the United States appears to have furnished most of the instances of requests for 
recall, as of dismissal of public ministers. 

The circumstances which led to the request for the recall of the French minister 
Genei in 1792 are so well known to nearly every schoolboy in the land that it is 
tmnecessary to recapitulate them here. Suffice it to say that his conduct was such 
that our Government would have been amply justified in sending him out of the 
country. 

The request of the French Government for the recall of Gouoenteur Morris made 
at the same time was also fully justified. Morris had been engaged in intrigues 
in favor of the monarchical or Court party. 

The United States seems also to have been justified in its request for the recall 
(in 1871) of the Russian Minister Caiacazy, who had rendered himself personally 
obnoxious by conversation and publications abusive of President Grant. 

The most recent incident of this sort is that of the Spanish Minister De LSme, 
On Feb. 8, 1898, the New York Journal published a private letter abstracted from 
the mails at Havana by a Cuban sympathizer, in which the Spanish Minister had 
described President McKinley as ''weak and a bidder for the admiration of the 
crowd, besides being a would-be (or rather second-rate) politician (polUicastro)" ; 
and he intimated that it would be advantageous for Spain to take up, "even if 
only for effect,'' the question of commercial relations. The United States promptly 
asked for his recall ; but De L6me, recognizing that his usefulness was at an end, 
had offered his resignation before the matter could be laid before the Spanish 
Government. It was promptly accepted. 

For these and other cases, see * 4 Moore, Digest^ \ 639. 

Though it is not strictly obligatory to accede to a request for recall, "the instances 
must be rare indeed in which such a request ought not to be granted." Mr. Buch- 
anan, Secretary of State, to Mr. Jewett, 1847, 4 Moore's Digest^ p. 494. 

Reasons for the request should always be given, if possible. In 1852 Secretaiy 
Everett refused to give reasons for a request for the recall of the Minister from 
Nicaragua, but these reasons were afterwards given. Moore, op, cU., p. 498. 

That a government must be its own judge as to the validity of alleged reasons is 
shown by the circumstances which led to the request for the recall of the United 
States Minister Wise by the Brazilian Government in 1847. The conduct of Mr. 
Wise in attempting to secure the release of Lieut. Davis and the American sailois 
who had been imprisoned by the Brazilian authorities, was highly approved by the 
United States Government, and his subsequent failure to sq>pear at several Court 
f^tes (the acts nominally alleged as reasons for his recall) was due to a sense of 
"recent insult and indignity." No government could afford to recall a mimster 
under circumstances which involved an implied censure for acts of which it heartily 
approved. 4 Moore, op. cU., 495-497. 



RIGHTS AND DUTIES OF DIPLOMATIC AGENTS 283 

269. Dismissal of -Ministers. — A minister should only be 
positively dismissed* under the most extreme circumstances, as 
when hostilities are on the point of breaking out, an impossible 
ultimatum has been delivered, if his Government has positively 
refused reparation for a serious wrong, when his personal conduct 
has been such as to make it practically impossible to continue 
further relations with him, or in case of interference in internal 
or domestic affairs.* 

ft 

tt This is done by sending him his passports and, if necessary, escorting him to 
the frontier. 

** Hall (p. 299 of 6th ed.), who exhibits an an ti- American bias upon several 
occasions in hfe otherwise admirable work, sneeringly remarks: "The United 
States has had the misfortune to supply almost all the modem instances in which a 
Government has felt itself unable to continue relations with a minister accredited to 
it." Upon a superficial view this reproach appears to be deserved, but an impartial 
examination of the cases themselves will show that, except in one instance, the dis- 
missals were wholly justifiable. Indeed, it must be admitted that, in some of these 
cases, our Government showed a forbearance bordering upon pusillanimity. 

The first of these unfortunate cases was that of the Spanish Minister Yrujo in 
1804-1806. After denouncing an Act of Congress as '^an atrocious libel/' Yrujo 
attempted (in 1804) to corrupt the editor of a newspaper by offering a pecuniary 
consideration for opposing certain measures and views of the Government of the 
United States and advocating those of Spain. Though the Spanish Government 
had granted him "permission" to return to Spain in response to a request for his 
recall, Yrujo failed to take his departure, and returned to Washington early in 
1806, where he was officially informed that his presence was ''dissatisfactory "to 
the President Thereupon he notified the United States Government that he in- 
tended to remain in Washington as long as it might suit the "interests of the king" 
and his own "personal convenience," and that he remained in possession of all his 
rights and privileges. He not only conununicated his correspondence with our 
Government to his colleagues of the diplomatic corps, but he also caused it to be 
published in the newspapers. His conduct appears, however, to have been approved 
by the Spanish Government. Though virtually dismissed early in 1 806 , he remained 
in the country until late in 1807. Together with Merry, the British Minister, 
Yrujo was also implicated in the Burr con^iracy. 

On the Yrujo Incident, see especially 2 Adams, History of the U, 5., 258-368, 
362-373; $ Ibid., 184-189, 194, 209, 236-264; Foster, i4m. Diplomacy, 217-220, 
225 ; * 4 Moore, Digest, § 640, pp. 508^511 ; i Wharton, Digest, §{ 84 and 107, pp. 
605 and 698. 

The second case is that of the British Minister Jackson in 1809-1810, who twice 
intimated that our Government had been guilty of falsehood and duplidty in its 
negotiations with the British Government. He was consequently injformed that 
no further communications from him would be received, and Mr. Pinkney, then 
United States Minister in London, was instructed to ask for his recall (Nov. 23, 
1809). Dipbmatic relations having been suspended pending his recall, Mr. Jackson 
was finally (March 14, 1810) directed to return to England, though Lord Wellesley 
stated that his conduct was not disapproved by the British Government. 

In the meantime Mr. Jackson had withdrawn from Washington to New York 



284 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

270. The Fiction of Exterritoriality. — For the sake of pre- 
serving harmonious relations, and in order to ensure independence 
or freedom in the exercise of their functions, diplomatic agents 
enjoy certain privileges and immunities in the countries to which 

and Boston, where he gave a toast "so flagitiously insolent to the Government of the 
United States that Mr. Madison was compelled to direct that his recall should be 
immediately demanded." Any one who will read the amusing note published by 
Mr. Wharton in his Digest (I, § 107, pp. 107 flF., reprinted in 4 Moore, § 640, pp. 
515 Q.)f cannot fail to be convinced that if the administration of Mr. Madison is 
subject to critidsm in this matter, it b that it was insufficiently vigorous. 

On Jackson's Case, sec 5 Adams, History^ 96-132, 154-157, 212-219; Foster, 
Am. Diplomacy, 220-223; *4 Moore, 511-525; • i Wharton, 606-609, 713-723. 

In 1849 Secretary Clayton refused to hold any further correspondence with the 
French Minister Poussin on the ground that he had used language disrespectful to 
our Government. 4 Moore, pp. 531-533. 

In 1856 Secretary Marcy announced to the British Minister Mr. Crampton the 
determination of the President to 'discontinue further intercourse" with him on 
the ground that he had continued to violate the Neutrality Laws of the United 
States by participation in the recruiting of troops for the Crimean War after he 
had been admonished not to do so. His recall had been refused by the British 
Government which placed a different construction upon our Neutrality Laws than 
maintained by the United States. 4 Moore, pp. 533-535. 

The most recent case is that of Lord Sackville-West.a, curious ''breach of dip- 
lomatic privilege and invasion of purely domestic affairs." During the Presidential 
campaign of 1888, the British Minister was made the victim of a common election- 
eering trick. He received a letter marked "private," purporting to come from a 
naturalized Anglo-American residing in California, asking his advice as to the Presi- 
dential candidate most likely to favor British interests. In his reply to this decoy 
letter, Lord Sackville intimated that the Democratic party was secretly, though not 
openly, friendly to Great Britain, and he inclosed an extract from a newspaper 
in which electors were advised to vote for President Cleveland. 

The letter was published a few weeks before the election, and used as a cam- 
paign document against the candidate whom it was intended to favor. The situa- 
tion was rendered more difficult by reason of Lord Sackville's unsuccessful attempts 
to explain matters to American newspaper reporters, in the course of which he accused 
the administration of acting for political effect. Secretary Bayard promptly 
cabled Mr. Phelps, the United States Minister in London, to request his lordship's 
recall as speedily as possible. 

Lord Salisbury properly declined to act until he had received Lord Sackville's 
explanation, but suggested that dismissal was preferable to immediate recall, as 
dismissal need not end his diplomatic career. Inasmuch as election day was draw- 
ing nigh. Lord Sackville promptly received his passports. 

' The British Minister was undoubtedly guilty of an indiscretion, but it cannot be 
seriously maintained that his offence was of such a character as to justify a dismissal 
or even a demand for recall. Indeed, the London Times (cited by Foster, Practice 
of Diplomacy f 189) scarcely put the case too strongly when it said: "A more ridic- 
ulous spectacle has rarely been witnessed in any civilized country than the flurried 
and unmannerly haste with which the Government of President Cleveland has 
endeavored to put a slight on this country, obviously for electioneering purposes, 



RIGHTS AND DUTIES OF DIPLOMATIC AGENTS 285 

they are accredited. These rights have frequently been grouped 
imder the head of exterritoriality. But there is a growing dis- 
position on the part of the more recent authorities to frown upon 
the use of this term as a useless^ misleading, if not dangerous 
fiction or metaphor.*' 

before Her Majesty's ministers could deal, one way or the other, with the aUeged 
indiscretion of the British representative at Washington." 

However, the case has its extenuating circumstances. Perhaps the very absurd- 
ity or humor of the situation prevented too great resentment on the part of the 
English. They knew that the Irish vote was not to be trifled with. 

On the SackvUU Incident , see 6 Calvo, { 258 ; * Foster, Practice of Diplomacy , 
187-189; Hall (6th ed.), 300-301 n.; i Halleck (3d ed.), 367 f. ; Lawrence (3d 
ed.), § 146 ; • 4 Moore, Digest, § 640, pp. 536-548 ; Taylor, 5 322 ; Wheaton (Atlay's 
ed.), § 225 d. 

There is one other case of dismissal deserving of special mention to which the 
United States was not a party. It is that of Mr. Btdwer, British Minister at Madrid 
in 1848. Acting upon the instructions of Lord Palmerston, he warned the Spanish 
Government of the danger of the course it was taking in not pursuing a sufficiently 
liberal policy, and recommended the adoption of a legal and constitutional course of 
government. To this interference in its domestic affairs, Spain replied by sending 
Mr. Bulwer his passports with an intimation that he must leave Madrid within 
forty-eight hours. 

This case is particiilarly important because Lord Palmerston, though clearly 
wrong in applying them in this case, laid down the correct principles governing 
the conditions under which a demand for the recall of a public minister should be 
complied with. They are thus summarized by Lord Salisbury : 

" It is, of course, open to any government, on its own responsibility, suddenly 
to terminate its diplomatic relations with any other State, or with any particular 
minister of any other State. But it has no claim to demand that the other State 
shall make itself the instrument of that proceeding, or concur in it, unless that 
State is satisfied by reasons, duly produced, of the justice of the grounds on which the 
demand is made." 4 Moore, Digest, p. 538. The reply of Secretary Bayard to this 
argument (pp. 539 ff.) is unconvincing. He is misled on thb point by the "high 
authority" of Calvo (see p. 547). 

On the Bulwer Incident, see 3 Calvo, § 1515 ; * Hall (6th ed.), 300; * 4 Moore, 
{ 640, pp. 538-S39» 545-546; Taylor, § 322. 

^ Among those opposed to the idea of exterritoriality as a principle of Int. Law, 
may be cited: Barth^lemy, in 13 R, D. I. P. (1906), 125 f. ; Bonfils (Fauchille), No. 
693 ; Bry, Nos. 214, 245, 249; Crouzet, Z)e Vinvi-olahilite ft de Vexemption de juris- 
diction (187s), 71 ff. ; Dana, note 129 to Wheaton ; Despagnet, Nos. 233, 238. 251 ; 
2 Fiore, Nos. 1147, ii54- 1^61 ; HaJl (6th ed.), 165-166, 197-198; i Halleck (Ba- , 
ker's 3d ed.), 332 ff.; Kebedgy, Die diplomatischen Privilef^ien (1901), 8 ff. ; Law- 
rence (3d ed.), § 120; 2 M6rignhac, 249-257; 4 Moore, Digest, 630 f. ; 2 Nys, 366 
ff. ; Odier, Des privileges des agents diplomatique (1890), 307 ff. ; Ortolan, Elements 
de droit penal, § 521 ; Pi6tri, La fiction d*exterritorialitf (1895), ch. 2 ; 2 P. -Fod^r^, 
CourSf 47-50; 3 Ibid.f Trait f, Nos. 1 396-1 397 ; Pinheiro-Ferreira, notes sur le Pricis 
de G. F. de Martens, II, §§ 172, 215; i Westlake, 263; Ullmann (2d ed.), § 50, 
p. 183. 

Among those in favor of exterritoriality, either as a right or a useful legal fiction, 



286 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

I. IfanciabilUj 

271. The Principle of Inviolability. Its implication. — The 
main special right or privilege of dii^omatic agents is that of 
inviolability or exemption from restraint, injury, or interference. 
This principle, based originally upon the supposed sacred charac- 
ter of the herald or envoy and sanctioned by religion, was one 
of the oldest and most fundamental '' laws of all mankind " " 
known to the ancients. It extends to the family and suite as well 
as to the person of the agent, and applies to all things or persons 
necessary for the accomplishment of his mission, such as his 
residence," furniture, carriages, archives, couriers, and cor- 
respondence. It begins as soon as the envoy enters the coimtry 
to which he is accredited, and only ends when he leaves it, even 
in case of a rupture or suspension of diplomatic relations. 

272. In Third Countries. — The authorities are divided on the 
question whether the diplomatic agent is inviolable in third 
coimtries which he is obliged to traverse in order to reach his 
destination; but the better opinion would seem to be that he 
enjoys a limited inviolability conditioned on his good behavior, 
and the right of innocent passage, provided the third State is 

are the following: Bluntschli, Arts. 135-153; Bynkershoek, De foro Ugatcmm 
(1721); 3 Calvo, §§ 145 ffi 1499 ff-; Droin, UtxierritorialiU (1895), 57 ff.; 
Funck-Brentano et Sord, 63-^4 ; Geffc^en, in 3 Holtzendor£F, 654 ; Grotius, lib. 
n, cap. 18; Heffter, § 205; Heyking, VexterritarialiU (1889), { 41; KlUber, 
|§ 49, 204; Liszt (3d ed.), pp. 741 113, and iigff. ; Lehr, Manuel, Nos. 1071 ff.^ 
Lisboa, Les fondions diplomaiiqueSf^; 2 G. F. de Martens, {§ 172 and 215 ; i F. 
de Martens, § 82; 2 Ibid., § 12; i Lorimer, 248; Neumann, § 205; i Oppen- 
heim, § 389; i Pi6delidvre, Nos. 488 ff.; 2 Phillimore, §§ 104, 108, 140, 176 ff.; i 
Rivier, 330-335, 417 ff., 481-499; Stoerk, in 2 Holtzendoiff, 656; Vattd, liv. 
IV, ch. 9, § 117; Vercamer, Des franchises diHomatiques (1891), 142 ff.; i Twiss^ 
§§ 165 and 217; Wheaton, § 224. 

These authorities differ greatly from each other as to the nature, basis, and extent 
of exterritoriality. Some consider it a mere fiction, others a legal right or principle ; 
some make it include inviolability, others restrict it to immunity from criminal and 
civil jurisdiction ; some extend it to the person and suite of the agent, others limit 
to the hotel, etc., etc. 

The main objections to this term are well summed up by Kebedgy {Diplom^ 
Pnvilegien^ 1901, p. 8) : It is insufficient, since jurisdiction is not exclusively terri- 
torial ; incorrect, inasmuch as the hotel or residence of the embassy is not, under all 
circumstances, exempt from local jurisdiction; unnecessary, because the immuni- 
ties are explicable on other grounds. It is also dangerous, as apt to give rise to 
extravagant pretensions. 

" See supra f § 33. '•See infra, § 278. 



RIGHTS AND DUTIES OF DIPLOMATIC AGENTS 287 

not at war with the sending or receiving State.*^ He is also 
probably immune from arrest and detention*^ except in serious 
cases, but it is doubtful whether he is legally entitled to any 
other immunities in third States. 

273. Limits of Inviolability. — Except in cases of necessity or 
self-defense," the right to inviolability in the country which 
receives them, is nearly absolute. In most countries public 
ministers are protected by special laws.** In any case there is an 

•" C/. suprCj note on p. 280. 

As in favor of the view that diplomatic agents are inviolable in third States, 
Bonfils (No. 689) mentions Vattd, Merlin, HoltzendorfF, KlUbcr, de Martens, 
Wheaton, Travers, Twiss, and Lorimer ; as opposed, Grotius, Bynkershoek, Gentilis, 
Zouch, Wicquefort, Heffter, Calvo, and Camazza-Amari. Bonfils himself shares 
the affirmative opinion. To this affirmative list may be added : Halleck, Taylor, 
Ullmann, Phillimore, Rivier; to the negative list, Hall, Oppenheim, M^rignhac, 
Pjmeroy, P.-Fod6r6, and Westlake. 

It should be added that the Institute of Int. Law suppressed Art. 19 of the Rules 
on Diplomatic Immunity adopted in 1895. '^'^ article had recognized the inviola- 
bility and immunities of public ministers in third countries. See 14 Annuaire^ 239. 

»* Wilson v. Blanco (i88q), 56 N. V. Superior Court, 582, and Scott, 206. For a 
criticism of this decision, see i Westlake, 265-266 n. 

^ When the safety of the State is threatened, as in cases of conspiracy ; volun- 
tary exposure to danger, as in case of a riot, an assault, acceptance of a duel, etc. ; 
or when the diplomatic agent is traveling incognito. 

The classic cases of conspiracy are Count Gyllenborg, Swedish Ambassador to 
England (171 7), and the Prince of CellarmarCy Spanish Ambassador to Paris (1718). 
Both were placed under arrest and held as prisoners. These cases are dted in 
nearly all the treatises. For full reports, see i Ch. de Martens, Causes cildnres, 
75-138 and 139-173. For brief reports, see Snow, Cases, 87-88. 

"A foreign minister, by committing the first assault, so far loses his privilege, 
that he cannot complain of an infraction of the Law of Nations ; if , in his turn, he 
"should be assaulted by the party aggrieved." U.S. v. Ortega, 4 Wash. Circ. Ct. 
(1825), 531, dting and affirming U.S. v. Ljddle (1808), 2 Wash. Circ. Ct. 205. See 
Scott, Cases, 197 n. 

** The Revised Statutes of the United States, §§ 4063-4064, declare any judicial 
process null and void whereby *'the person of any public minister of any foreign 
prince or State authorized and received as such by the President, or any domestic 
or domestic servant of any such minister, is arrested or imprisoned, or his goods or 
chattels are distrained, seized, or attacked " ; and every person suing out or executing 
such process is declared to be "a violator of the I^w of Nations, and a disturber of 
the public repose," and shall be imprisoned for not more than three years and fined 
at the discretion of the Court, 4 Moore, Digest, § 660. 

For foreign legislation on this subject, see Heyking, VexterritorialiU (1889), 
§ 21 ; Odier, Des privileges des agents diplomatiques (1890), 53-78; and Vercamer, 
Des franchises diplomatiques (1891), ch. 2. France has special press laws providing 
for the punishment of the defamation of ambassadors, etc. See Odier, 103 R.; 
3 P.-Fod6r6, TraiU, 1385; 2 Tbid., Cours, 16-19. For the text of the English 
law (7 Anne, c. 12), see Blackstone, Com., Bk. I, c, 7, § 255, or Halleck (3d 



288 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

obligation to punish violations of this principle of the Law of 
Nations on the part of individuals. If an infraction is committed 
by the Government itself or by one of its officials, suitable repara- 
tion by way of explanation, apology, indemnity, etc., must be 
made. 

2. Immunity from Criminal Jurisdiction 

274. Immunity from Criminal Jurisdiction. — Diplomatic 
agents also enjoy immunity from criminal and civil jurisdiction.** 
Immunity from criminal jurisdiction is absolute. It consists 
in freedom from arrest and punishment for alleged crimes or 
violations of law by the local authorities,** but this does not mean 
that public ministers are exempt from obedience to local or 
municipal law.** In case the minister commits a serious crime 
or offense, he is punishable in his own coimtry, where he is supn 
posed to have retained his domicile, and he is responsible to his 
own Government, to which the proper representations should be 
made. A request for his recall may be made or, if his conduct 
be extremely reprehensible, he may be dismissed, or even, should 
necessity require it, be temporarily imprisoned or conducted to 
the frontier. 

A public minister cannot be compelled to give evidence or to 
act as a witness in a lawsuit or criminal trial, though he may, 
with the consent of his Government, waive this privilege,*^ He 

Baker's ed.), 337~338 n. The ordinary alien b also in a sense inviolable, i r., as 
entitled to the protection of the ordinary law and the courts ; but the diplomatic 
agent is inviolable in a special sense. 

^ These immunities are closely conncicted, and partly identical with inviolability, 
of which they seem to be a consequence and from which they cannot be com- 
pletely separated. 

•* This is well shown by Beling, Die sirafreckUiche Bedeutung der ExierriUfrialitai 
(1896), §§ 4-^. 

" This includes freedom from police jurisdiction as well, but public ministers 
are expected to observe local police or municipal regulations relating to sanitation, 
fire protection, license taxes for hunting, etc. In case of failure to comply 
with such regulations, complaint may be made to their own Government. On 
Police Regulations t see especially 4 Moore, Digest ^ § 669; and 2 P.-Fod6r6, Cours, 
1 1 2-1 16; 3 Ibid.^ Traitty Nos. 1427 flf. 

*^ This privilege was waived by SeOor Comanchoy Minister from Venezuela, who 
was present at the assassination of President Garfield in 1880. Acting upon in- 
structions from his Government, he gave evidence as a chief witness at the trial 
of the assassin Guiteau. 



RIGHTS AND DUTIES OF DIPLOMATIC AGENTS 289 

cannot, in general, waive his privilege of immunity from criminal 
jurisdiction without the consent of his sovereign. 



3. Immunity from Civil Jurisdiction 

275. Immunity from Civil Jurisdiction. Exceptions. — Diplo- 
matic agents also enjoy a limited immunity from jurisdiction in 
dvil matters. They are exempt " in principle, but there are im- 
portant exceptions like the following : 

(i) Real actions, relating to immovables which the minister 
possesses in the country to which he is sent. With the exception 
of his residence, these are subject to territorial jurisdiction. 

(2) When the agent or minister engages in a trade, profession, 
or in commerce, he is subject to local jurisdiction in his business 
or professional dealings.** 

(3) If he acts in a fiduciary character, such as guardian or 
trustee, he is liable for the obligations contracted in this capacity.*^ 

(4) When the minister, whether with or without the authoriza- 
tion of his government,^ voluntarily submits to judicial process 
without pleading his immunity, or if he himself sets the machinery 

In 1856 the Dutch Minister refused to appear as a witness at the trial in a case 
of homicide which had occurred in his presence. He was supported by his own 
Government and his colleagues of the diplomatic corps. This recall was after- 
wards requested by the United States Government, which regarded his refusal to 
testify as discourteous and disrespectful under the circumstances. See especially 
3 Galvo, § 1520 n. ; i Halleck (3d ed.), 353 ; 4 Moore, Digest, § 662 ; Snow, Cases, 
98; I Oppenheim, § 392. 

In countries which permit of such a practice, the deposition of a public minis- 
ter is usually taken and produced at the trial. 

^ There are a few dissentients (e.g. Fiore) from this opinion, but it is the view 
of the great majority of publicists and has the sanction of international practice. 

''This is the consensus of opinion among the authorities. But the con- 
trary view was taken by English judges in Taylor v. Best (1854), 14 Common 
Bench, 487, and Snow, Cases, 90; and in Magdelena Steam Navigation Co, v. Martin 
(1859), 2 Ellis and Ellis, 94. 

In Musurus Bey v. Godham, L. R. (1894), i Q. B. 533, it was held that the 
Statute of Limitations does not begin to run against his creditors while a foreign 
ambassador is in England and accredited to the sovereign. 

^ This would also be the case with property which he received by will or in- 
heritance. 

^ It is a disputed point whether the prior consent of his Government is neces- 
sary or not. See especially on this point Pi6tri, itude critique sur la fiction d^ex' 
territorialitS (1895), No. 56. 



290 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

of justice in motion. In such cases he must bear the judicial 
consequences of his action, though the means of execution would 
probably be limited to any real property he may possess. 

But as a general rule, diplomatic agents are not subject to 
suit for debt or in any civil action,^* and their movable property ** 
cannot be seized, attached, or confiscated. Injured parties 
should address themselves to the Minister of Foreign Aflfairs,** 
who may, at his discretion, bring the matter to the attention, 
first of the accused public minister, and later, if deemed advisable, 
to the Government he represents. 

4. Oiher Immunities and Privileges 

276. Fiscal Immunities. — ^' The person of a diplomatic 
agent, his personal effects, and the property belonging to him as 
representative of his sovereign, are not subject to taxation.^ 



' For the amusing case of the Ambassador of Peter the Great (1708), see Black- 
stone, Com., Bk. I, ch. 7, § 255, or Snow, Cases, 89. 

In 1772 the passports of the Baron de \Vrechf Minister Plenipotentiary of the 
Landgrave of Hesse-Cassel at the Court of Paris, were withheld for non-payment 
of debts. The diplomatic corps remonstrated against this act as a violation of I 

International Law. So far as we are aware, it has never been repeated. Snow, I 

97, and 2 Ch. de Martens, Causes cA^res, 110-121. 

** See Wheaton*s case (4 Moore, Digest, § 663 ; Snow, Cases, 94-97 ; and Wheaton, 
§§ 228-241) for an apparent exception to this rule. 

The Prussian Government supported the claim of Wheaton's landlord to detain 
his furniture for alleged damages on the ground that *' the lessor is entitled, as a 
security for the rent and other demands arising under the contract, to the rights 
of a Pfandgldubinger (a creditor whose rights are secured by hypothecation), 
upon the goods brought by the tenant upon the premises and there remaining at 
the expiration of the lease." Prussian Civil Code. 

In other words, ''the Prussian Government decided that the general exemp- 
tion of the personal property of a foreign minister from the local jurisdiction did 
not extend to the case in question, where, it was contended, the right of deten- 
tion was created by the contract itself and by the effect given to it by the local 
iaw." The United States Minister maintained that this position was in violation 
of diplomatic immunities. Those authorities who discuss the case appear to 
agree with Wheaton. 

^ In Austria there is a special court ^ for this purpose, but submission to its 
jurisdiction is voluntary. Neumann, Elements, § 62, p. 260. For Minister 
Jay's experiences before this court (1875), see 4 Moore, Digest, § 661. 

*^ This exemption includes direct personal taxes, such as the capitation or poll 
tax ; special taxes like those on income and capital (unless the minister is engaged | 

in commerce) ; sumptuary taxes like those on doors and windows ; those for military 
purposes, quartering troops, etc. 



RIGHTS AND DUTIES OF DIPLOMATIC AGENTS 391 

Otherwise, he enjoys no exemption from taxes or duties as 
of right. By courtesy, however, most, if not all, nations 
permit the entry free of duty of goods intended for his private 
use." ^ 

277. Other Privileges. — Other privileges of public ministers 
are the right of private worship (which is no longer of great im- 
portance in this age of toleration) ; the right, according to their 
rank, to certain ceremonial honors and marks of respect ;^^ a 
very limited and purely voluntary disciplinary jurisdiction over 
members of their suites or official families ; ^ and, if permitted 
by their home Governments, the right of performing certain civil 
functions, such as the issuance of passports to fellow nationals, 
the authentication of certain documents like wills, contracts, 
etc., and the performance of the marriage ceremony.** 

It does not necessarily include such indirect taxes as the excise, rates or assess- 
ments for local purposes from which he derives a benefit, inheritance taxes, cus- 
toms dues, stamp and registry duties, tolls, etc. Nor does the immunity include 
taxes on realty. Even the residence of the minister is not necessarily exempt 
from the land tax. In respect to indirect taxes and the tax on his residence, the 
principles of reciprocity or courtesy are usually applied. 

For the practice of the United States, see 4 Moore, Digest , §§ 667-669. Art. 11 
of the ** Rules on Diplomatic Immunities " adopted by the Institute of Int. Law in 
1895 declares: ''The foreign public minister, the functionaries officially attached 
to his mission, and the members of their families living with them, are dispensed 
from paying: (i) direct personal imposts and sumptuary taxes; (2) general im- 
posts upon wealth, whether upon capital or upibn income ; (3) war taxes ; (4) cus- 
toms dues in respect to objects for personal use. Each Government may indicate 
the evidence required for these exemptions from taxation." 14 Annuaire, 243. 

« HaU (6th ed.), 183. 

^ Sec especially 2 P.-Fod6r6, Coursy pp. 273 ff. ; cf. Ihid., TraiU, Nos. 1287 fiF., 
X496-1501. 

^ Sec Bonfils, Nos. 726-729 ; 3 Calvo, §§ 1540-1549 ; Heffter, § 216 ; 2 P.-Fod6r6, 
CourSf 254 ff. ; 3 Ibid., TraiU, Nos. 1472-1490; i Rivier, 504 f. 

But the old idea of the right of criminal and civil jurisdiction over members 
of the suite, formerly claimed and sometimes exercised, has disappeared from the 
doctrine as well as the practice of the Law of Nations, excepting in some parts of 
the Orient. See infra, § 291. 

** On Diplomatic and Consular Marriages, see Hall (6th ed.), 183-184 and note 
on p. 184 ; 3 Lawrence, Commentaire sur Wheaton, 357 ff. ; * 2 Moore, Digest, §§ 2 24- 
239 ; Odier, Des privileges des agents diplomatiques, 328-386 ; and Westlake, Private 
Int. Law (4th ed., 1905), §§ 27-30. 

The marriage of two fellow nationals of the diplomatic agent celebrated at the 
embassy is generally valid, if performed in conformity with the law of their State ; 
but no State is under any international obligation to recognize such marriages. 
And the State in which the ceremony is solemnized may refuse to recognize their 
validity^ unless performed in accordance with its laws. There appears to be no 



292 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

278. The Freedom of the Hotel or Immunity of Domicile. — It 

is generally agreed that the hotel or residence" of the foreign 
minister is protected from forcible entry or invasion by his dip- 
lomatic inviolability and immunities. But this freedom is not 
absolute. The embassy must not harbor criminals or refugees 
from justice,*^ and no violation of territorial sovereignty should 
be permitted. The minister should surrender those accused of 
crime and, if necessary, even permit the premises to be searched. 
In case of persistent refusal, the legation may be surrounded 
with guards, and if extremely urgent, forcible entry may be 
made.^^ 

general rule on this interesting subject, and the whole matter remains in great 
confusion. 

In its instructions to consular and diplomatic agents, the United States Govern- 
ment has always emphasized the importance of observing the law of the country 
in which the marriage ceremony takes place. 2 Moore, § 237. But this rule 
does "not apply to non-Christian or semi-civilized countries where consular courts 
are established." 2 Ibid., § 238. 

It would seem that mixed marriages or the marriage of a national with a for- 
eigner in the embassy would not, as a rule, be upheld. Thus, mixed marriages 
solemnized at foreign embassies in Paris have been repeatedly declared void by 
the French Tribunals; and the marriage between an Austrian and an English 
woman celebrated at the British embassy in Vienna was annulled by the Supreme 
Court of Austria in 1880. For the latter case, see Von Bar (Gille^ie's trans.), 
493 n. For the French case of Meffray and Mudge, see Odier, op. cit., 331 ff. 

"^ This includes his stable, carriages, etc. 

*^ The old "freedom of the quarter" has disappeared, except in some parts 
of the Orient. On the so-called Right of AsyluMf see supra, §§ 225 ff. 

But the protection of the embassy may well be extended from motives of hu- 
manity to refugees from mob violence or a criminal conspiracy. 

^ In the case of Gallatin's coachman (1827), who had committed an assault 
outside the embassy, the English Government claimed the right of arresting him 
within the stable of the minister. It admitted, however, that as a matter of 
courtesy, the convenience of the minister should have been consulted as to the 
time and manner of making the arrest. 4 Moore, pp. 656 f. 

This case is mentioned by nearly all the authorities, who generally cite it as an 
example of the "English practice," which they consider exceptional. It certainly 
does not seem to have been a case of extreme urgency. 

In 1865 a Russian subject, having wounded one of the attaches of the Russian, 
embassy at Paris, was removed by police officials who had been called upon for 
aid. Upon his being imprisoned and indicted, the Russian ambassador requested 
his extradition on the ground that the hotel of the embassy was extraterritorial ; 
but the French Government refused this request and proceeded with the trial. 
3 Calvo, § 1505. 

A Chinese refugee was induced to enter the house of the Chinese Legation in 
London (in 1896), and kept under arrest there with the purpose of sending him 
back to China for trial. But the English Government properly insisted upon his 
release, i Oppenheim, § 390. 



RIGHTS AND DUTIES OF DIPLOAIATIC AGENTS 293 



279. The Family and Suite of the Envoy. — To a greater or 
less degree, these immunities are shared by the family and suite 
of the envoy." His retinue or suite include : 

(i) The members of his family, as wife, children, and other 
near relatives living under his roof. 

(2) His official suite and their families, such as Councillors, 
Naval and Military Attaches, Secretaries of Legation," the 
Chancellor of the Legation, various assistants, clerks, inter- 
preters, the chaplain, doctor, official legal adviser, and the 
like. 

(3) Couriers or bearers of dispatches. 

(4) Domestics like private secretaries, tutors, and servants** 
such as cooks, coachmen, etc. 

280. Extent of these Immunities. — It is generally agreed that 
the various members of the family and of the official suite of the 
envoy, together with their families, enjoy the same inviolability 
and the same immunities that he himself does. Children bom 
to them during their mission are regarded as having been bom 
on the territory of the home State. These privileges cannot be 
waived *• without the consent of the home Government. They 
are also shared by couriers or dispatch bearers of the legation 
(who also share in the right of innocent passage through third 

" It is customary to furnish to the local authorities a list of the members of 
the family and domestics, but, according to Taylor (p. 346 n.), this custom is 
more honored in the breach than the observance. The best evidence of diplo- 
matic character is a certificate of the Secretary of State. In re Baiz (1908), 135 
U. S. 403, and Scott, 196 ; and U. S, v. Liddle, 2 Wash. C. C. 205. 

^ "The wife of a secretary of a foreign legation in this country is, while with 
him in his official capacity, subject, in respect to her personal estate, to the laws 
of the country he represents.'' Secretary Frelinghuysen to Mr. Lawrence (18S3). 
Cited in 4 Moore, Digest^ § 652. 

** These do not include workmen occasionally employed on the premises. To 
entitle one to immunity, the service must be real, and not colorable. Triquet v. 
Bath, 3 Burrows, 1478, and Scott, 6; Heathfidd v. CkUUm, 4 Burrows, 2015, and 
Scott, 189; and Sarmiento*s Case, in 4 Moore, p. 654. 

The immunity does not extend to matters unconnected with the. service. In 
NaveUo v. Toogood, i B. and C. 554, a chorister of the Portuguese ambassador was 
held liable for poor rates on a house in which he lived and let lodgings. This 
appears to have been on the ground that he was carrying on the business of lodging 
house keeper; for, in a later case, it was held that an attach^ of the Portuguese 
embassy was not liable for parochial rates on a house which had been sublet to 
him. Parkinson v. Potter (1885), L. R. 16 Q. B. Div. 152, and Scott, 192. 

** This is at least true in respect to those immunities belonging to any member 
of his official family or suite. 



294 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

States) during the perfonnance of their duties. The dispatches 
they bear are also exempt from search and seizure. 

It is also customary to grant exemption from civil and criminal 
jurisdiction to all persons in the private service of the envoy or 
of members of his legation, provided such persons are not na- 
tionals of the receiving State. But these privileges may be 
waived at discretion, and mere servants or domestics cannot claim 
exemption from taxes, immunity of domicile, or freedom from 
arrest for crime committed outside the residence of their em- 
ployers. In case of arrest, they should, however, be released 
if the envoy refuses to waive their immunity from criminal 
jurisdiction.*^ 

Mere visitors and hangers-on of the embassy do not enjoy dip- 
lomatic privileges and immunities." They do not necessarily 
extend to consids as such, public or secret political agents, 

*^ In this case they should be sent home for trial. Nationals of the receiving 
State should be handed over to the local authorities. 

There is a considerable diversity both in the doctrine and practice respecting 
immunities of domestics or non-official members of the diplomatic suite. The 
Italian school of publicists deny immunity from all criminal as well as civil juris- 
diction. Others make a distinction between these two kinds of jurisdiction. 
Some authorities distinguish between offenses committed outside and inside the 
embassy ; others between nationals and foreigners. 

Anglo-American law and practice, which grant immunity from suit to do- 
mestics of public ministers, seem more liberal than necessary, for the modem 
tendency is to restrict the diplomatic privileges and immunities of mere servants 
or non-official members of the legation, and this tendency is in the right direction. 
These extensive immunities are no longer necessary (if, indeed, they ever were) 
to the freedom of the diplomatic agent. At any rate, there appears to be no good 
reason why domestics should enjoy immunity from dvil jurisdiction. 

'" The case of Don Pantaleon Sa (1653) is the one usually dted in this connec- 
tion. But it is not clear whether this brother of the Portuguese ambassador, 
who was executed by Cromwell for murder conmiitted under circumstances of 
peculiar atrocity, was a mere visitor or an actual member of the Portuguese em- 
bassy. It appears that he had received a promise from his sovereign that he 
would be appx)inted to succeed his brother (whose recall was momentarily escpected) 
as ambassador to England. 

As Lawrence {Principles (3d ed.), p. 277) says: "If he is to be regarded as a 
member of his brother's suite, all we can say is that International Law has de- 
veloped since his time and would not now permit a trial and execution under 
similar circumstances by the authorities of the State where the crime was com- 
mitted. But if he was simply a visitor at the embassy, he would not be protected 
by diplomatic immunity to-day any more than he was two hundred and forty 
years ago." 

For the case of Don Pantaleon Sa, see Snow, Cases ^ 86 ; and 2 Ward, Hisi. of ike 
Law of Nations, S3S~S46. 



RIGHTS AND DUTIES OF DIPLOMATIC AGENTS 295 

military or naval officers, or mere commissioners not clothed with 
a diplomatic character. But they do extend to the judges of the 
Hague Tribunal or Court of Arbitration and of the International 
Prize Court," members of official International Congresses and 
Conferences, and, in general, to aU agents clothed with a diplomatic 
or representative character. It should be added that if a State 
consents to receive one of its own nationals in a diplomatic 
capacity, it should extend to him all privileges and immunities 
belonging to his mission, unless it has made their abandonment 
a condition of his reception.^ 

n. Sovereigns and Heads of State 

281. Immunities of Sovereigns. — Sovereigns and Heads of 
State traveling or residing abroad enjoy, in time of peace, in- 
violability and absolute immunity from criminal and police 
jurisdiction." They are also exempt from civil process^ except in 
the following cases : 

(i) In respect to any real property which they may possess as 
private individuals in the foreign State. (2) Respecting civil 
actions based upon the capacity of the State or sovereign as heir 
or legatee in an open succession upon foreign territory. (3) In 
case the State or foreign sovereign voluntarily accepts the local 

»• See infra, §§ 314, 528. 

^ English judges hold that even a British subject may enjoy the immunities 
of a diplomatic agent. Macartney v. Garbutt, L. R. 2 Q. B. Div. 368. See Art. 
15 of the Rules adopted by the Institute of Int. Law to the contrary. 14 Annuaircj 
244. 

*^ Unless they travel incognito. But this is no real exception, inasmuch as 
they may, at any time, reveal their identity and thus claim the privileges and im- 
munities of sovereigns. 

Another apparent exception is where a sovereign enters the military service 
of another sovereign. In this case, his immunities are partly suspended. Where 
a person is subject in one country and sovereign in another, he is subject to the 
laws of the former in his private capacity. 

If the safety of the State requires it, as in case of conspiracy, they may be sent 
out of the coimtry. This is rather an application of the supreme law of necessity 
than an exception to complete immunity. 

Presidents of Republics, when traveling in a representative capacity, have a 
right to the same privileges and immunities as Monarchical Sovereigns. 

■ Sec De Haber v. Queen of Portugal (185 1), 17 Q. B. 196, and Scott, 180; and 
MigkiU V. Sultan of Johore (1894), L. R. i Q. B. 149. See also i Calvo, §§ 1462- 
1473 > 2 Phillimore, § 109 ; and 2 Moore, Digest, § 250. 



296 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

territorial jurisdiction.^ (4) For damages resulting from a de* 
linquency committed by a sovereign upon foreign territory, unless 
such injuries are due to acts of sovereignty.** 

Foreign sovereigns or Heads of State also enjoy certain fiscal 
immunities, such as freedom from direct personal taxes, customs 
dues, etc. ; but they are not necessarily exempt from indirect 
taxes other than customs dues, or from taxes on realty. 

These immunities extend to his residence, family, and suite; 
but, contrary to the older practice, the sovereign ^ has no criminal 
jurisdiction over members of his suite on foreign territory. 
Nor may he afford asylum to crimin9,ls or refugees from justice. 
Sovereigns who have abdicated or been deposed do not have a 
right to the privileges and immimities of reigning sovereigns, 
though they may enjoy them as a matter of courtesy. 

282. A State not Liable to Suit or Judicial Process. — That a 
State cannot be sued without its own consent has long been a 
fundamental principle of the Law of Nations, as it is of the 
Constitutional Law of the United States.* 

** Foi important English and American cases, see Scott, 170-186; Snow, 72- 
82; and 2 Phlllimore, § 113 A. 

** For these exceptions, see the Rules adopted by the Institute of Int. Law in 
1891. II Annuaire, 436. 

The fourth exception is very doubtful. It appears to be a principle of French 
jurisprudence, but it would certainly be rejected in England, where it has been 
held that a foreign sovereign was not liable in damages for a breach of promise 
of marriage which he had made while living in England under an assumed name. 
See Sultan of Johore^ L. R. i Q. B. 149, and 2 Moore, Digest, § 250. 

** The older practice is illustrated by the famous case of Queen Christina of 
Sweden (1657), 3 Calvo § 1477, and Walker, Manual, 70. In 1873 the Shah of 
Persia condemned a member of the suite to death in London, but the British 
Government refused to permit the execution. 

** See Amend. XI of the Constitution of the United States. 

To the principle laid down in the text, there seems to be an exception, vix. 
where the State owns or inherits real property or conducts a business enterprise 
in the territory of another State. On the much-discussed Zappa Ajfatr, see espe- 
cially 6 Calvo, §§ 286-299; Despagnet, No. 186; and i Westlake, 241. For ref- 
erences on the Zappa Affair, see Bonfils (5th ed.), p. 157. 

On the general subject of this section, see especially Despagnet, Nos. 257 f.; 
F6raud-Giraud, ^ts et souverains . . . dcvant les trihunaux itrangers (2 vols., 
1895); Kohler, Laband, Meili, etc., in 4 Zeitschrifl (1910), 309 ff.; Imbert, Les 
emprunts d'itats itrangers (1905) ; Meili, Der Staatshankerott (1895) ; Moulin, La 
doctrine de Drago (1908) ; Piot. Des rigles de competence applicable aux 16ms et aus 
souverains Strangers (1887) ; De Paep>e, l^udcs sur la competence civUs des Hats 
strangers (1894); Wuarin, Essai sur les emprunts d'itats (1907). For further 
references, see Bibliographies in Bon£]s, No. 632, Moulin, etc. 



RIGHTS AND DUTIES OF DIPLOMATIC AGENTS 297 

BDUOORAPHT 

Rights And Duties of Diplomatic Agents. — 14 Annuaire (iSgs), 
2oi-a44; Bernard, Lectures on Diplomacy (1868); Bluntschli, Arts. 159- 
243 ; * Bonfils (Fauchille), Nos. 652-732 ; Bry, Nos. 215-258 ; Bulmerincq, 
in I Marquardsen, §§ 7i» 73, 76, 80; Bynkershoek, Deforolegatorum (1721) ; 
*3 Calvo, §§ 1310-1367, 1480-1549; 6 Ibid., §§ 258-262, 285, 304-323; 
Chretien, Nos. 442-542; i Cobbett, Cases (3d ed.), 293-308; ^Dana, 
note 129, Dana's ed. of Wheaton ; Davis, Elements (3d ed.), ch. 7 ; Despag- 
net, CourSf Nos. 218-252; De Clercqet de Valla t, For midair e des chancd- 
leries diplomatiques et consulaires (1898) ; Droin, UexterritorialiU des agents 
diphmatiques (1895); F6raud-Giraud, itais^ souverains, personnel diplo- 
matique et consulaire, etc., devant les tribunals Strangers (1895) ; 2 Fiore, 
Nos. H03-1175; Foster, Practice of Diplomacy (1906); Field, Code, 
Arts. 91-158 ; Funck Brentano et Sorel, PrScis, ch. 5 ; * Garcia de la Vega, 
Guide pratique y etc. (4th ed., 1905) ; Geffcken, in 3 Holtzendorff, 605-684 ; 
Gentilis, De legationibus (1585), lib. Ill; *Grotius (1629), lib. II, cap. 18; 
*Hall (6th ed.), 170-184, 292-308; i Halleck (Baker's 3d ed.), 269-273, 
325-368; ♦ HefFter (Geffcken), §§ 198-240; ♦Heyking, VexterritorialiU 
(1889); Hubler, Die Magistraturen, etc. (1895); *Kebedgy, Die diplo- 
matischen Privilegien (1901) ; Kliiber (Ott's 2nd ed.), §§ 166-230 ; Lawrence, 
Principles (3d ed.), §§ 127, 141-151 ; Ibid. (4th ed.), §§ 106, 121-130; * Lehr, 
Manuel des agents diplomatique (1888) ; Lisboa, Les fonctions diplomatiques 
(1908) ; Liszt (3d ed.), § 14; Ch de Martens, Le guide di^onuUique (6th 
ed., 1866) ; Ibid., Causes cUkbres (1858) ; * 2 G. F. de Martens (Verge's ed.), 
§§ 175-250; 2 F. de Martens, §§ 6-17 ; 2 Merignhac, 229-294; * 4 Moore, 
Digest, ch. 15, §§ 623 ff. ; 2 Nys, 335-393 \ ^*»^» ^s origines, etc. (1894) ; 
Neumann, §§ 53-67 ; * Odier, Des privileges des agents diplomatique (1890) ; 
* I Oppeiiheim, §§ 358-417 ; 2 Phillimore, §§ 114-242 ; * Pi6tri, ^ude sur 
la fiction d^exterritorialiti (1895) ; * i Pi6delievTe, Nos. 453-516 ; Pomeroy, 
ch. 11; * Pradier-Fod6r6, Cours de droit diplomatique (2 vols., 2nd ed., 
1899); Ibid., 3 Traits, Tit. I, ch. i; *i Rivier, 429-518; Schuyler, Am. 
Diplomacy (1886), 105-190; * Scott, Cases, 189-208; * Snow Cases, 83-99; 
Ibid., Int. Law, § 15; Taylor, §§ 273-333; i Twiss, ch. 12; UUmann 
(2nd ed.), §§ 44-53; Van Dyne, Our Foreign Service (1909), ch. 2 (very 
elementary) ; Vattel, liv. IV, §§ 53 ff. ; Vercamer, Des franchises diploma- 
tiques (1891); Walker, Manual, § 26; Walpole, Foreign Relations (1882), 
ch. 4; I Westlake, 263-277 ; * i Wharton, Digest, ch. 4; Wheaton (Atlay's 
ed.), §§ 206-251; Wicquefort, Uambassadeur et ses fonctions (1780); Wil- 
son, ch. 5 ; Wilson and Tucker, ch. 13 ; Woolsey, §§ 86-98. 

For further references, see the Bibliographies in Bonfils, Droin, Heyking, 
Oppenheim, and Olivart. 

Rights and Duties of Sovereigns. — 11 Annuaire (1981), 436 ff., or 
Tableau, etc., 116-117 ; Audinet, in 2 R. D. I. P. (1895), 385 ff. ; Blimtschli, 
Arts. 1 1 5-1 58; ♦Bonfils (Fauchille), Nos. 632-647; Bry, Nos. 206-214; 
Bulmerincq, in i Marquardsen, § 66; *3 Calvo, §§ 1454-1479; 6 Ibid.^ 
§§ 282-303; I Cobbett, Caje5, 92-96; *Despagnet, Nos. 253-258; F6raud- 



298 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

Giraud, J&tats, souverainSf etc. (1895); i and 2 Fiore, Nos. 501 ff., 1097- 
1 102; *Foote, Private IfU, Jurisprudence (3d ed., 1904), 149-166; Gabba, 
in IS, 16, and 17 /. /. P., 180 ff., 538 ff., and 25 Q. ; Hall (6th ©d.), 168- 
170; HdBFter (Geffcken), §§ 48-57 ; Liszt (3d ed.)i § 13 ; iF.de Martens, 
§§ 80-83; *2 M6rignhac, 294-314; Neumann, §S 15-16; * i Oppenheim, 
§§ 341-356; 2 PhiUimore, pt. VI, ch. i; i Pi6delievie, Nos. 517-528; 
Piari, La fiaion d'exierriiarialiU, Pt. 11, ch. 2 ; 3 P.-Fod6r6, Train, Nos. 
1537 ff.; * I Rivier, 413-425; * Scott, Cfl5«, 170-180; Snow, Cases, 72-82; 
Ibid., Int. Law, § 14; Stoerk, in 2 Holtzendorf, 658 ff. ; Taylor, § 184; 
Ullmann (2nd ed.), § 41 ; Vattel, liv. I, §{ 38-45, and liv. IV, § 108 ; i West- 
lake, 240-242 ; Ibid.f Private Int. Law (4th ed.), 1905, §§ 190-193 ; Wheaton, 
§895-98. 



CHAPTER XVra 

SIGHTS aud dutebs of consuls and consular juris- 
diction IN THE ORIENT 

283. Definition. — Consuls are official agents sent by a State 
to foreign ports and cities, mainly for the purpose of watching over 
and promoting the commercial and industrial interests of the 
appointing State and its citizens or subjects, and of protecting 
its nationals traveling or residing in these regions.^ 

284. Classification. — With reference to their character, 
modem consuls are of two kinds : (i) Consuls mi5^, or professional 
consuls (consuls de carriere), who are not permitted to engage in 
any other business or profession. They are real public officials 
or functionaries of the sending State and enjoy full consular 
privileges and immunities. (2) Consuls eUcti? or conmierdal 
consuls, who are chosen by the appointing government, either 
from its own citizens engaged in business in the city or country in 
which they are permitted to exercise their fimctions, or from 
among the nationals of a foreign State (usually of the country in 
which they serve). They are of distinctly inferior competence 
and status, and do not enjoy full consular privileges and immuni- 
ties.* 

With respect to rank, consuls are usually divided into four 
classes: (i) Consuls-general who exercise supervision or control 

^ On the Mediteval Origin of the Constdatey see supra, § 51, and note on page 52, 
for references. 

' This term is now a misnomer, since this dass of consuls is also appointed by 
the sending State. They were formerly elected by foreign merchants themselves. 

* Some States (e.g. France, Great Britain, and the United States) do not, as a 
rule, appoint merchant or business consuls. 

The United States has always preferred to appoint native American citizens, 
if properly qualified candidates for the position could be found. "No person 
who is not an American dtizen shall be appointed hereafter in any consulate- 
general or consulate to any clerical position the salary of which is one thousand 
dollars a year or more.'' Act of April 5, 1906, sec. 5. See 5 Moore, Digest, § 697, 
p. 12. lliis Act also abolished the grade of conunercial agent. 

209 



joo ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

over several consular districts or one large consular district 

(2) Consuls for smaller districts or certain towns or ports. 

(3) Vice-consuls with consular character. (4) Consular agents 
with consular character * 

Consuls are, as a rule, placed under the direction of the Minister 
of Foreign Aflfairs or Secretary of State, with whom they corre- 
spond and to whom they send their reports ; but they are also 
under the general supervision of the diplomatic agent or public 
minister accredited to the Government of the country in which 
they are located. 

285. The Appointment of Consuls. — Every State is free to 
appoint such consuls, whether of its own or of a foreign national- 
ity, as it deems qualified ; but no State is legally bound either to 
admit them generally^ or to permit the exercise of consular 
functions in a particular place or locality. 

The consul receives from his home Government letters patent 
(lettres de provision) or a commission which is transmitted through 
diplomatic channels to the Minister of Foreign A£fairs of the 
country in which he is to serve. If he prove acceptable, he is 
furnished with an exequatur,^ or authorization to exercise con- 
sular functions by the foreign Government. The exequatur may 



^ I Oppenheim, § 422. The British Consular Service has six ranks. Ihid,^ 
p. 468. 

''By the Act of April 5, 1906, for the reorganization of the United States con- 
sular service, Consuls-generfd are divided into seven classes, according to the 
salary, and consuls into nine classes. . . ." See 5 Moore, p. 8. For this Act and 
the regulations governing consular appx)intments and promotions in the United 
States, see Supplement to i ^4. 7. (1907), 308-316. 

"Consuls-general of the United States have usually a supervising jurisdiction 
over the consuls in the country to which they are accredited. . . . Consuls- 
general and consuls are appointed by the President and confirmed by the Senate. 
Vice and deputy consuls-general are recommended by their chiefs, and are com- 
missioned by the Secretary of State. . . . Consular agents are nominated by 
the consuls, are commissioned by the Secretary of State, and act as the represen- 
tative of their chief at the commercial places within their district. . . .'' Foster, 
The Practice of Diplomacy, 218. 

' By refusing to appoint or receive consuls, a State would, of course, practically 
lose many of the advantages of membership in the international community. 

* " An exequahir usually consists in a letter patent signed by the sovereign, and 

countersigned by the Minister of Foreign Affairs ; but it is not necessarily oonfened 

in so formal a manner ; in Russia and Denmark the consul merely receives notice 

that he is recognized, and in Austria his commission is indorsed with the word 

exequatur' and impressed with the imperial seal." Hall (6th ed.), 311. 



RIGHTS AND DUTIES OF CONSULS 301 

be refused ^ or it may be withdrawn • without assigning any 
reason. In serious cases the receiving Government may ask 
for a consul's recall, though such a request need not be enter- 
tained by the appointing Government, unless it is satisfied that it 
is well groimded. In extreme cases a consul may be sunmiarily 
dismissed. 

286. Functions of Consuls. — One of the leading authorities ' 
on this subject has classified or summarized the duties or functions 
of consuls under the following heads : 

(i) As commercial agents of their Government and as protec- 
tors of the commerce and navigation of their nationals.^ 

(2) As agents for their Government for securing political 
information and as overseers of the execution of treaties.^^ 

(3) As agents for the administration of the marine of the state, 
and as agents charged with the police of the merchant marine.^^ 

"* A State may refuse to receive a consul on personal or political grounds. No 
reasons for refusal need be given. 

The case usually cited in this connection is that of Major Haggerty^ a naturalized 
Irish-American, who was known to have been connected with Fenian plots. Eng- 
land properly refused to grant him an exequatur in 1869. 

* M6rignhac (II, 327) justly observes: "This measure should only be taken 
after ripe reflection, for it is more serious than the refusal to grant an exequatur." 

For cases of Refusal^ Revocation^ Dismissal and Recall , see i Calvo, §§ 1381 ; 
i383-i384» 1391; Hall (6th ed.), 311 and 312 n.; * 5 Moore, Digest, §§ 700-701 ; 
and 4 P.-Fod6r6, Nos. 2063-2064. 

* Pradier-Fod6r6, in 4 Traiti, Nos. 2070-2096. On the Duties or Functions of 
Consuls f see also Bonfils, Nos. 762-771 ; * Foster, Practice of Diplomacy , 223-237 ; 
• Hall, Foreign Jurisdiction ^ etc., 73-101 ; * 5 Moore, Digest, §§ 717-731 ; i Oppen- 
heim, §§ 429-433; 2 Phillimore, §§ 257-260; •Stowell, Le consul (1909), 15-136, 
225-297; Ibid., Consular Cases and Opinions (see index); Consular Regulations 
of the United States (1896) ; Ullmann (2d ed.), § 6x. 

^^ They furnish all sorts of information relating to municipal laws, tariffs, trade 
conditions, industries, navigation, agriculture, finances, institutions, etc., to their 
Government or fellow nationals. Much of this information, which is often extremely 
valuable, is embodied in consular reports. 

They are also expected to lend their good offices in securing for their fellow citi- 
zens fair treatment and protection from injustice ; and in maintaining for them all 
the privileges and advantages to which they are entitled through municipal law, 
international usage, or treaties, more particularly the most-favored nation clause. 

" Their r61e as political agents is entirely secondary and passive, if not excep- 
tional. The function of overseeing the execution of treaties of commerce and navi- 
gation is, however, of prime importance. 

^ They control and legalize "ship's papers," inspect vessels, and certify invoices 
of their cai^goes, settle disputes between master and crew or passengers, assist sailors 
in distress, secure their arrest or extradition for desertion, mutiny, or other 
crimes. 



302 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

(4) As agents of administration in general.^ 

(5) As officers of the home State for the performance of dvil 
functions." 

(6) As officials acting in a ministerial capacity." 

(7) As protectors and, imder certain circumstances, guardians 
of the interests of their fellow nationals.^* 

(8) As arbitrators or judges exercising a very limited and purely 
voluntary jurisdiction over fellow nationals." 

(9) As sanitary police agents and administrators.^" 

The rights and duties of consuls are determined, in any par- 
ticular case, by treaties, by custom or international usage, by such 
conditions as may be laid down in the exequatur, and by the consu- 
lar laws and regulations of the appointing State. But consuls 

>* This includes a wide range of functions, such as the issuance and vis6 of pass- 
ports to fellow nationals, the authentication and legalization of documents, the grant- 
ing of certificates of various sorts, the registry of births, deaths, and marriages, etc. 

^* For example, the consular right to celebrate marriages, as to which the practice 
varies greatly. It is, in general, limited to marital unions between fellow nationals. 
Great Britain permits it where one of the parties is a British subject. The United 
States does not authorize its consuls to solemnize marriages. 

On Consular Marriages^ see especially : Hall, Foreign Jurisdiciion, etc., 85-101 ; 
I Halleck (3d ed.), 381 f. and notes; 2 Moore, Digest, § 240; 4 P.>Fodfr6, No. 2079; 
Stowell, Le consul (1909), 34-51 ; Ihid., Consular Cases (see compendium and in- 
dex) ; Westlake, Private Int. Law (4th dd., 1905), § 27. 

^^ Such are notarial acts of various sorts, like the attestation of contracts, the 
attestation and reception of wills, the reception of moneys and goods deposited by 
fellow nationals, the examination of witnesses and administration of oaths, etc. 

^* Most consular conventions give them the right of appealing to the local authori- 
ties to secure this protection, which may even be extended to nationals of other States 
who are under their protection (prot^g6s). Generally speaking, it is the duty of 
consuls to render such aid to their fellow nationals as is necessary to enable them to 
earn their living or return to their own country; but this obligation is a moral 
rather than a legal one, and great care and caution must be used in its exercise. 

It is also customary for consuls to intervene in the administration of successions 
and see that justice is done in case of the death of fellow nationals, and they may 
have to act as guardians in behalf of minors, idiots, etc., and to administer estates. 

^^ Except in the case of crews they have no contentious or compulsory jurisdic- 
tion in so-called Christian countries. , 

It is a custom based on treaties and usage for consuls to exercise a disciplinary 
jurisdiction (though not to the exclusion of local jurisdiction) over such offenses 
committed by the crews of vessels of their own nationality as do not disturb the 
peace or dignity of the port. 

>^ Their r61e in this capacity is mainly that of furnishing their Government 
with information relating to epidemics, the state of public health in the cities or 
ports where they are located, the measures taken to prevent or check the ^read of 
disease, etc. They also inspect vessels bound for a port of their own country for 
this purpose. 



RIGHTS AND DUTIES OF CONSULS 303 

may not discharge functions at variance with the law of the 
receiving State.^* The duties of American consuls are rendered 
particularly onerous by reason of our tariff and immigration laws, 
which impose upon them many functions in connection with 
their execution. 

287. Constdar Privileges and Inununities. — Though consids 
do not, as a rule, exercise diplomatic functions, they nevertheless 
enjoy certain privileges and immimities ; but these are, for the 
most part, derived from treaties, local usage, or general custom 
based upon considerations of respect or reciprocity. 

288. Those forming Part of Intemationiil Law. — There are, 
however, a few rules which may be said to form a part of Inter- 
national Law proper. It is generally agreed that professional 
consuls are under the special protection of International Law, 
and that they are entitled to a certain degree of respect and pro- 
tection^ or personal immunity, though they are not inviolable.*' 
It is also agreed that the oflGicial archives^ and correspondence of 
the consulate are inviolable ; and that consuls are permitted to 
place above the outside entrance of the consulate the arms of 
their country, and to display the flag® of their country on public 

^* Opinion of Alt. -Gen. Gushing in Opinions of Attorney* s-General, 100 and 470, 
or Stowdl, Consular Cases and Opinions, 570 and 582. 

^ States are prone to resent any affront offered to their consuls or consulates, 
such as an attack by a mob or insult to the consular flag. In the New Orleans 
A fair (see supra, § 154), Webster admitted liability for the attack on the Spanish 
consulate. 

For the numerous cases illustrative of the protection due to consular officers and 
archives, see 5 Moore, Digest, §§ 704-705. For the famous Priichard AJfair between 
France and England, which almost resulted in war, see i Calvo, § 1392 or 2 Philli- 
more, § 247. 

^ But the personal inviolability of consuls is usually secured by treaty. To the 
same effect is Art. 7 of the "Regulations relating to Immunities of Consuls," 
adopted by the Institute of International Law in 1896. 15 Annuaire, 273. "In 
no case may consuls be arrested or detained, except for grave infractions of the law." 
For an English translation of these " Regulations," see Stowell, Consular Cases, 1-5. 

^ This immunity naturally carries with it the inviolability of the consulate or 
of that portion of the consul's residence in which the archives are contained, but 
it does not extend to the private papers or personal effects of the consul. 

It goes without saying that the consulate should not be used as an asylum for 
refugees or criminals. These should be surrendered upon request by the local 
authorities. 

" Art. 14 of the '' Regulations " adopted by the Institute (1896). But the Con- 
sular Regulations of the United States (1896) state that "permission to display 
the national flag is not a matter of right, though it is usually accorded." § 73. 



304 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

occasions unless they reside in a dty where their Government is 
represented by a diplomatic mission. 

The measure of consular privileges and immunities in Inter- 
national Law woidd seem to be the amount or degree necessary 
for the proper performance of consular duties. Thus, a consul, 
not a citizen of a foreign State, may claim exemption from service 
on juries and in the militia, and no troops should be quartered 
upon the consulate or consular residence. 

^ Such are the consular privileges and immunities which may be 
said to constitute a part of International Law. In addition, 
they enjoy considerable privileges which are based on treaties, 
reciprocity, the most-favored-nation clause, or local usage.** 

289. Privileges and Immunities Based on Treaties and 
Usage. — One of the most general considar immunities based on 
treaty or reciprocity is that of exemption from direct personal 
contributions, such as the poll tax, and from taxes on income, 
furniture, doors and windows,** etc. ; but they are never exempt 
from taxes on realty, or on business in which they are 
themselves engaged.** 

The student should read the whole of Article V on "The Privileges and Powers of 
Consular Offices under the Law of Nations." 

** ** Generally, a consul may claim for himself and his office not only such rights 
and privileges as have been conceded by treaty, but also such as have the sanction 
of custom and local laws, and have been enjoyed by his predecessors or by consuls of 
other nations, unless a formal notice has been given that they will not be extended 
to him." Consular Regulations of the United States (1896), § 72, p. 27. 

^ In some countries exemption from customs dues is granted as a matter of 
courtesy. ''Article 476 of the Customs Regulations of the United States provides 
for free entry in the United States *of articles sent by a foreign government, for its 
use, to an agent in this country, on application through the Department of State. ' " 
5 Moore Digest y § 716. 

Art. 13 of the " Regulations on Immunities of Consuls '' adopted by the Institute 
of International Law (1896) declares: "Consuls are exempt from the payment 
of: (i) direct personal taxes, and sumptuary taxes ; (2) general taxes upon their 
fortune, whether upon the capital or income ; (3) imposts of war. 

s« « With reference to a complaint that the consul of the Elector of Hesse at New 
York had been enrolled in a military company, and had been fined by a court- 
martial for non-attendance upon the company's parades, the Department of State 
said that the case was one that belonged primarily to the courts of law, which had, 
when resorted to in such cases, always decided, according to the principles laid down 
by the Law of Nations, and embodied in treaties, that ' all persons recognized in the 
consular character by the President's exequatur, who are not citizens of the Untied 
States, are exempted from all public service, and from all taxes, imposts, and contri- 
butions except such as they may have to pay on their property, or in consequence of 
their engaging in commercial pursuits, they remaining in all cases amenable to the 



RIGHTS AND DUTIES OF CONSULS 305 

Another common consular immunity found in treaties is that 
of freedom from the obligation of serving as witness or giving 
testimony in court except through deposition.*' 

Nearly all authorities agree that consuls, whether engaged 
in trade or not, are amenable to the local courts in dvil as well 
as criminal matters ; ^ but it is also generally held they should 
not be ^' arrested or detained except for grave infractions of the 
law." » 

290. Termination of Consular Functions. — The consular 
office terminates through death, recall or dismissal, revocation of 
exequatur, or war.*® It is a principle universally recognized 
that a change in the headship of the appointing or receiving 
State does not terminate the functions of a consul. Neither a 
new conunission nor exequatur are necessary.'^ 

laws of the countxy.' " Secretary Forsyth to Mr. Faber (1S40), in 5 Moore, Digest^ 

§715. 

This passage throws light upon the practice of the United States ; but it cannot 
be successfully maintained that the exemption from taxes is a principle of the Law 
of Nations, for it is not universally recognized, nor is it essential to freedom in the 
performance of consular duties. 

" Secretary Marcy contended (in 1854) that the provision in the Federal Con- 
stitution granting to an accused person the right of codipulsoiy process to procure 
the presence of witnesses in his favor, prevailed over a treaty with France which 
exempted consuls from the obligation of appearing in court and giving testimony. 
This contention ''was not acquiesced in by the French Government, which required 
their flag, when raised to the mastheads of certain of their men-of-war at San Fran- 
cisco, to be saluted as a reparation for the alleged indignity to their consul." 5 
Moore, § 714. See also Snow, Cases , 99 ; i Wharton, Digest^ 665 ; and In re Dil- 
lon (1854), 7 Sawy., 5-61, or Stowell, Consular Cases , 139. 

All reiisonable doubt on this subject has been removed (if any ever existed) by 
the decisions in Baiz v. Malo (1899), 58 N. Y. Supp. 806; and U. 5. v. TrumbM 
(1891), 48 Fed. Rep. 94. For summary, see Stowell, 51 and 418. 

^ The principle that consuls are not entitled to the immunities of public minis- 
ters from dvil and criminal jurisdiction appears to have been first laid down judi- 
cially in Barbuil*s Case (1737), Forrester's Cases Temp. Lord Talbot, 281, and 
Stowell, Consular Cases ^ 52. It has been repeatedly affirmed. For numerous other 
cases, see 5 Moore, Digest, §§ 711-712; and Stowell (see compendium, pp. 758- 
760, and index, 799). A particularly interesting case is that of Com, v. Koslojf 
(1816), 5 S. and R. 545; 5 Moore, Digest, § 712; and Stowell, 112. 

** In the United States the Federal Courts have exclusive jurisdiction over 
consuls. 5 Moore, § 713. Art. 7 of the Regulations of the Institute, cited 
above. 

'^ It is doubtful whether the functions of a consul terminate when his district 
is annexed, ceded to, or conquered by another State. Oppenheim (I, § 437) thinks 
the answer should be in the affirmative. 

* I Oppenheim, § 438. 



3o6 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

291. Consular Jurisdiction in Africa and the Orient. — In 

Mohammedan countries and in the Orient,^ the consuls have not 
only retained their original jurisdiction ^ over their own country- 
men, but they also enjoy most of the diplomatic privileges 
and immunities. These include inviolability, certain marks of 
honor and respect, immunity from dvil and criminal jurisdiction, 
and other miscellaneous rights and privileges.'^ 

BIBLIOGRAPHT 

Consular Jurisdictioii in Mohammedan Countries and the Orient. — 

Arminjou, Grangers et proUgis dans V Empire Ottoman (1903) ; * Bulmerincq, 
in 3 Holtzendorff, 720-738, 753 flF., and in i Marouardsen, §§ 75, 78-79; 
*Bonfils (Fauchille), Nos. 776-791; Brouillat, Etude sur la juridiction 
consulaire (1898); 3 Calvo, §§ 1431-1449; Chr6tien, Nos. 580 ff. ; De- 
spagnet, Nos. 345-351 ; * Hall, Foreign Jurisdiction of the British 
Crown (1894), 134-203; I Halleck (Baker's 3d ed.), 386-400; Hinckley, 
American Consular Jurisdiction in the Orient (1906) ; Httbler, Die Magis- 
traturen (1895), §§ 19-21 ; Jenkyns, British Rule beyond the Seas (1902), 
ch. 8; Kebedgy, in 27 R, D, /., 313 ff. ; Lawrence (4th ed), § 109; Ibid, 
(3d ed.), § 131 ; W. B. Lawrence, i and 4 Commentaire sur Wheaton^ 120 ff. 
and 104 ff. ; Ibid.^ on Japan in 28 /^. Z>. /., 97 ff. ; * Lippmann, Die Konstdar- 
jurisdiktion im Orient (1898); Liszt (3d ed.), § 15; * Mandelstam, "La 
justice ottomane," etc., in 14 R. Z>. /. P. (1907), 5-534 ; * F. de Martens, Das 
Constdarwesenf etc. (1874) ; Ibid,, 2 Traits^ §§ 24-26 ; 2 M6rignhac, 66- 
118, 338-356 ; 5 Moore, Digest, § 703 ; 2 Nys, 403-418 ; Ibid., in 7 R. D. I. 
(2d series), 237 ff.; i Oppenheim, §§ 439-442; P6lissi6 du Kansas, Le 
rSgime des capitulations dans V Empire ottomane (2 vols., 1902 and 1905); 
2 Phillimore, §§ 273-277; *Pi6tri, La fiction, d' exterritoriality (1895), 
282-354; Piggott, Extraterritoriality (1892); 4 P.-Fod€re, Nos. 2122- 
2138; *Rey, La protection diplomatique et consulaire dans Ics Echelles du 
Levant (1899) ; i Rivier, 543-558 ; Snow, Int. Law, 22, 62 ; Tarring, British 
Consular Jurisdiction in the East (1887); Taylor, §§ 331-333; *i Twiss, 
ch. 14 ; Ibid.y in 25 R. D. /., 213 ff. ; Ullmann (2nd ed.), §§ 63-65 ; i Whar- 
ton, Digest, § 125; Woobey, §§ 99-100. 

For further references, see Bonfib (5th ed.), pp. 452 f., and p. 460 for 
references on the Mixed Tribunals of Egypt — a subject of special interest. 

^ Except in Japan, where the extraterritorial privileges and immumties of con- 
suls were abolished in 1899. 

" This extraterritorial jurisdiction seems to be based upon the right of protec- 
tion — a right which extends even to natives who are taken under the protection 
{protigis) of the foreign diplomatic or consular legations. It is derived from 
treaties or capitulations (see i Twiss, ch. 14), and is reinforced by custom or pre- 
scription. 

** Since this highly complicated and technical subject forms no part of Interna- 
tional Law proper, but is based mainly upon treaties, it has not been deemed neces- 
sary to enter upon a detailed discussion of it in the text. 



RIGHTS AND DUTIES OF CONSULS 307 

Consuls. — II, 12, 13, and 15 Annuaire, 348 ff., 275 flF., 179 flF., 
and 273 ff., respectively; Bluntschli, Arts. 244-275; Bodin, Les im- 
fnuniUs constUaires (1899); *Bonfils (Fauchille), Nos. 733-775; Bul- 
merincq, in 3 Holtzendorff, 687-797 ; Ibid,, in i Marquardsen, §§ 70, 72, 
74, 77, 81 ; 3 Calvo, §§ 1368-1430; De Clercq et de Vallet, Guide pratique 
des constdats in 2 vols. (5th ed., 1898) ; Davis (3d ed.), 21 1-2 18 ; Despagnet, 
Nos. 352-368; *£ngelhardt, in 20, 21, 22, and 25 R, D, /., 505 ff., 588 ff., 
336 ff., and 132 ff., respectively; F6raud-Giraud, Etats, souverains, etc. 
(1895); Field, Code, Arts. 159-185; 2 Fiore, Nos. 11 76-1 187; * Foster, 
Practice of Diplomacy, ch. 11; Funck-Brentano et Sorel, Pricis, ch. 6 ; 
*HaD, Foreign Jurisdiction, etc., 73-101; Ibid., Int. Law (6th ed.), 309- 
315 ; I Halleck. (Baker's 3d ed.), ch. 11 ; Heffter, §§ 244-248 and Geffcken's 
notes; Htibler, Die Magistraturen, §§ 12-18; Jones, Consular Sendee of the 
United States (1906); Lawrence (3d ed.), § 148; Ibid. (4th ed.), § 131; 
4 Lawrence, Commentaire, 1-304; Lehr, Manuel des agents diplomatiques 
€t consulaires (1888) ; Lisboa, Les functions diplomatiques (1908), ch. 5 ; 
Liszt, § 15; *Koenig, Handbuch des deutschen Konstdarwesens (6th ed., 
1902); I Ch. de Martens, Guide diplomatique (1866), §§ 68-78; 2 F. de 
Martens, §§ 18-23 ; Monnet, Manuel diplomatique et consulaire (1905) ; 

* 5 Moore, Digest, ch. 16 ; 2 N)rs, 394-403 ; * i Oppenheim, §§ 418-438 ; 

* 2 Phillimore, §§ 243-271 ; * i Pi6deli^vre, Nos. 567-616; Pillaut, Manuel 
de droit consulaire (1910) ; Pomeroy, §§ 370-385 ; * 4 P.-Fod6r6, Nos. 2034- 
2146; *i Rivier, 519-542; Sales, Uinstitution des consulats (1898); 
Schuyler, "Our Consular System," in American Diplomacy; Scott, Cases, 
234-251 ; * Stowell, Le consul (1909) ; * Ibid., Consular Cases and Opinions 
(1909) ; Taylor, §§ 325-330; i Twiss, § 223 ; * UUmann (2d ed.), §§ 54-62 ; 
Walpole, Foreign Relations, ch. 5 ; i Westlake, 269, 277-278 ; i Wharton, 
Digest, ch. 5; Wheaton (Atlay's ed.), §§ no, 216, 249; Ibid. (Dana's ed.), 
notes, 68 and 135 ; * Wilson, ch. 6 ; Woolsey, §§ 99-100. 

See also Consular Regulations of the United States (1896) ; and General 
Instructions to Her Majesty's Consular Officers (1893). 

For further references see the bibliographies in Bonfils, and Stowell. 



CHAPTER XrX 

INTERNATIONAL CONGRESSES AND CONFERENCES 

292. Purpose and Character of International Congresses and 
Conferences. — The enormous increase in the number, variety, 
and importance of International Congresses and Conferences^ 
since the middle of the nineteenth century has been discussed 
in the Introduction.^ In this connection it will merely be neces- 
sary to point out a few of the rules governing the organization 
and procedure of these bodies. 

They usually consist' of delegates or representatives of a 
number of Sovereign States clothed with diplomatic privileges 
and immunities, and bearing full powers and instructions, who 
meet for the purpose of discussing matters of common interest, 
or for that of negotiating agreements on certain subjects. The 
most important are those which meet to settle great political 
questions, like the Congress of Vienna in 181 5 or that of Berlin 
in 1878, to discuss and decide matters of common interest, like 
the various Pan-American Conferences, or to negotiate great 
Lawmaking Treaties or World Agreements like the Hague Peace 
Conferences of 1899 and 1907.* 

^ These terms appear to be used interchangeably at the present time. Only 
official Congresses and Conferences are dealt with in this chapter. 

* See supra, § 79. 

* Heads of States now seldom or never attend these Conferences in person. The 
States represented are usually, though not necessarily, fully sovereign. 

* The number and importance of Lawmaking and Peace Conferences has greatly 
increased within recent years. The first important Lawmaking Congress was that 
of Vienna in 181 5, but its work as an International Legislature was entirely second- 
ary. The same is true of the Congress of Paris in 1856. But after 1870 we have a 
series of Lawmaking Conferences and Congresses, beginning with the Brussels 
Conference of 1874 (including the Hague Peace Conferences), which do not have 
their origin in the need of a political settlement after a great war or series of wars, 
but which are called in times of peace for the purpose of preventing or regulating 
war. 

308 



INTERNATIONAL CONGRESSES AND CONFERENCES 309 

The Great Powers have, in times past, undertaken to speak 
for the whole of Europe or the world, more particularly in the 
solution of political questions ; but the present tendency appears 
to be toward a more general inclusion of the smaller or weaker 
Powers, even of Asia and Latin America.* 

293. Rules of Organization and Procedure. — There are no 
fixed rules for the organization and procedure of these bodies. It 
would seem that any State or Government may call such a 
Congress or Conference and invite such Powers as it pleases.* 
The invited Powers may accept with or without conditions, or 
may decline the invitation altogether.^ Each State which has 
been invited may send as many delegates or representatives as 
it chooses, but these together have but one vote, usually cast 
by the head of the delegation. 

After the selection of the President^ and other officers, and 
the exchange and verification of their powers, special com- 
missions or committees* are chosen for the discussion and de- 
termination of particular subjects. These are again discussed 
and voted upon in full session by the Congress or Conference as 
a whole. To give full legal validity to a vote or resolution, practi- 
cal unanimity ^^ is necessary, though the majority may consider 

* See supra f note on p. 81. 

* The inviting Power also usually formulates the program, as did Russia for 
the two Hague Peace Conferences. 

^ " No State can be a party which has not been invited, or admitted at its own 
request." i Oppenheim, § 484, p. 511. But it is customary to invite all States 
interested in the particular objects of the Conference. No Sovereign State should 
be excluded from a Congress or Conference dealing with questions which interest 
the international community as a whole. 

* It has been customary to select as President the First Plenipotentiary or 
Minister of Foreign Affairs of the State in whose territory the Congress or Con- 
ference is held« but this custom was not followed at the two Hague Peace Confer- 
ences. The First Plenipotentiary of Russia was selected as a compliment to the 
Czar who had called these Conferences. 

* The Hague Peace Conference of 1907 was divided into four general commissions 
which were divided (with one exception) into two subcommissions. These sub- 
commissions were too large, for they ranged from 75 to 103 members (inasmuch 
as any plenipotentiary could register on one or all of them). In some cases, 
Committees of Examination were appointed to report to the subconunittees. In 
addition, there was a small Commission on Petitions and a larger Commission 
on Editing for the Conference as a whole. There is great need for a better 
oiganization of the next Hague Conference. 

For further information on the organization and procedure of the Second Hague 
Peace Conferences, see Hull, 31-34; and Scott, 112-122L 

*^ By practical or quasi-unanimity is meant the agreement of nearly all the 



3IO ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

the motion binding upon its members. The results achieved 
at each session are collected into a procis-verbal (minutes) or Pro- 
tocol. The body of articles or resolutions adopted are finally 
collected into a whole — the Final or General Act, which is 
signed by the plenipotentiaries of the several States, with or 
without reservations. 

294. Language. — The official or customary language used 
at these Conferences is French — the language of diplomacy 
par excellence ; but any delegate has a right to the use of his own 
mother tongue. 

BIBUOGRAPHT 

Congrestes and Conferencas. — * Baldwin, in i ^4. /. (1907), 569- 
623; Bluntschli, Arts. 12, 108-114; * Bonfils (Fauchille), Nos. 796-814; 
3 Calvo, §§ 1674-1681; Despagnet, No. 437; 2 Fiore, Nos. 1216- 
1224; GefiFcken, in 3 Holtzendorff, 679 fiF. ; i Halleck (Baker's 3d ed.), 
468-469 ; Heff ter (Geffcken) , No. 240 and Geffcken's note ; * Kama- 
rowsky, Le tribunal int. (1887), 91-102; * Liszt (3d ed.), § 16; i F. de 
Martens, § 52; Nippold, Die Forihildung des Verfahrens (1907), § 20, pp. 
481 ff. ; * I Oppenheim, §§ 483-485 ; * 2 P.-Fod6r6, Cours de droit diph- 
matique (2nd ed., 1899), 339-454; 6 Ibid., TraiU, Nos. 2593-2599; 2 Rivier, 
8-18 ; * I Scott, The Hague Conferences, chs. i, 2, and 3 ; Taylor, §§ 34-36; 
Ullmann (2d ed.), ii 72-73 ; Zaleski, Die Volker-Bedeutung der Kongresse 

(1874). 

For a list of 116 Official Congresses, or Conferences, see Baldwin, 1 A. J. 

(1907), 808 ff. For an annual review of official Conferences, see Fried's 

Annuaire delavie internationale. 

States, including all the more important ones. The continued and persistent 
opposition of a Great Power is nearly always fatal to a proposal, though it may not 
oppose its insertion in the Final Act ; the opposition of several smaller or relatively 
unimportant States is, on the other hand, frequently ignored. Their legal rights 
remain unimpaired, for they are not bound to sign the Final or General Act, or they 
may withdraw from the deliberations of the Conference. 



CHAPTER XX 

INTERNATIONAL TRBATIBS 

295. Definitioii. — International Treaties or Conventions^ are 
agreements or contracts between two or more States, usually 
negotiated for the purpose of creating, modifying, or extinguish- 
ing correlative rights and reciprocal obligations. 

296. Classification of Treaties. — Treaties are of many kinds 
and variety of content. Since all attempts at a scientific classi- 
fication of treaties have failed,' it is perhaps the most convenient 

* The terms " treaty " and " convention " are practically synonymous, though 
the latter term is perhaps applied more frequently to treaties of lesser importance. 
There are various other kinds of agreement between States, such as protocols (see 
supra y § 295), cartels (see infra, note on p. 406), declarations (usually of a reciprocal 
character), modi vivendi (working arrangements), exchange of notes or letters , and 
sponsions, i.e. agreements sub sperati made between representatives who are not pro- 
perly commissioned or who act in excess of authority. 

Concordats are agreements between Catholic States and the Pope concerning the 
affairs of the Roman Church in Catholic countries. 

' I Oppenheim, § 492, and n. 2 on p. 518. The old division of treaties into real 
and personal has no longer any practical value. More useful is F. de Marten's 
<I, § 1x5) classification of treaties into political and social, but it is suggestive rather 
than exhaustive. Some authorities substitute the term " economic " for " social." 
Pradier Fod6r6 (II, Nos. 920 ff.) divides treaties, considered as to their object, into 
general and special. This division seems somewhat arbitrary, but it affords a con- 
venient means of summary. Under General Treaties, he includes treaties of peace, 
of political union, alliance, guarantee and protection, neutrality, cession, commerce, 
and custom unions. Under the head of Special Treaties, he deals with Concordats, 
boundary treaties, those establishing servitudes, treaties of navigation, consular 
conventions and capitulations, conventions relating to literary and artistic property, 
industrial property, extradition treaties, postal, and telegraphic conventions, and 
conventions relating to railroads. 

Perhaps the most scientific classification of treaties is that which divides them into 
executed, transitory, or dispositive treaties on the one hand ; and executory, continu- 
ing, or permanent treaties on the other. "An executory contract is one in which 
a party binds himself to do, or not to do, a particular thing ... A contract exe- 
cuted is one in which the object of the contract is performed ; and this, says Black- 
stone, differs m nothing from a grant." Chief Justice Marshall, in Fletcher v. Peck^ 
6 Cranch, 136. Cited by Taylor, § 343, p. 367. 

3" 



312 ESSENTIALS OF INTERNATIONAL PUBLIC LAW 

to refer to them in terms of their nature, purpose, or subject 
matter ; as, for example, treaties of alliance, protection, guarantee, 
peace, neutrality, commerce, extradition, arbitration, copyright, 
monetary treaties, consular conventions, etc. We may also 
speak of treaties as simple or conditional, unilateral or bilateral 
(as to whether the contracting parties are reciprocally bound or 
not), preliminary or definitive, accessory, additional, subsidiary, 
or principal (as to whether they depend on a previous treaty or 
not) etc. 

Especially important' is the distinction between ordinary 
treaties which are mere bargains and the great Lawmaking or 
International Law Treaties, such as those negotiated by the 
Hague Peace Conferences, which will probably mark an epoch in 
the development of Internationalism. 

297. Conditions for the Validity of Treaties. — The follow- 
ing are the essential conditions for the validity of a treaty : 

(i) The parties to it must be capable of contracting. Fully 
sovereign States have complete contracting power, and part- or 
semi-sovereign States such measure of contracting power as has 
been retained by or conferred upon them.^ All treaties in excess 
of this power are null and void. 

(2) The persons or agents who negotiate the treaty must have 

Westlake (I, 60 f.) defines what he prefers to call dispositive treaties as those 
" which dispose of or about things by transferring or creating rights in or over them, 
as a deed conveying a field or granting a right of way over it, disposes of or about the 
field by transferring the property in it to the purchaser, or creating the right of 
way over it in the grantee." Cf. Ibid., 283-284. 

Examples of executed or transitory treaties are boundary treaties,